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ILLUSTRATIONS IN ADVOCACY. 



EXAMPLES OF CONDUCTING THE PROSE- 
CUTION AND DEFENSE OF CIVIL 
AND CRIMINAL CASES. 

INCLUDING 

METHODS OF CROSS-EXAMINATION, 

AL80 

CICERO'S DEFENSE OF ROSCIUS FOR MUR- 
DER, AND THE STORY OF THE TICH- 
BORNE TRIAL RE-TOLD. 

BY 

RICHARD HARRIS, Esq., 

Author of "Hints on Advocacy." 

First American from the First London Edition. 

REVISED AND ADAPTED TO THE AMERICAN PRACTICE 
BY AN AMERICAN LAWYER. 



ST. LOUIS, MO.: 
WILLIAM H. STEVENSON, 

LAW PUBLISHER AND PUBLISHER OF THE 

CENTRAL LAW JOURNAL. 

1885. 



COPYRIGHT, 1885, 

BY 
WILLIAM H. STEVENSON. 



PREFACE. 



As Experience is the severest school, so mistakes 
are its hardest lessons. My business is not to teach, 
but to give the result of my observations, and my 
observations have been principally directed to the 
leading men (nominally) in the profession. Were 
I ever so great a teacher I could never hope to teach 
my leaders, nor could I expect them to condescend 
to be taught. But if I could not induce them to be 
learners, it is no reason why I should not compel them 
to be teachers. Many of them are so full of instruc- 
tion, to say nothing of amusement, that it would be 
a thousand pities to let it flow away, without so much 
as sprinkling the thirsty inquirers for knowledge, who 
sit watchful and gasping on the banks of this boun- 
tiful stream I 

The world is full of teachers do not let it be 
supposed that I wish to add to their number let me 
rather be the entertaining companion of an idle hour. 
By this means my book will not be confined to the 
limited number of aspirants to Forensic honors, but 
will extend its circulation to the world of readers, 
who sometimes require a change from the tideless 
deep of philosophy, or the gushing rivulets of 
romance. 

RICHARD HARRIS. 
LAMB BUILDING, TEMPLE, 

London, July 2 at, 1884, 



TABLE OF CONTENTS, 



CHAPTER I. Introduction. 

CHAPTER n. In Actions for Breach of Promise of 

Marriage, 1 

CHAPTER HI. In Actions on Covenants in Bills of 

Sale, 22 

CHAPTER IV. In Cases of Recovery of Stolen Goods 

and How to Challenge Jurors, 40 

CHAPTER V. In Actions against Railroad Companies 

for Negligence, - 61 

CHAPTER VI. In Actions against Street Railway Com- 
panies, - 72 

CHAPTER VTI. In Actions against Directors of Cor- 
porations, - 85 

CHAPTER VIH. In Actions against Insurance Com- 
panies, - 98 

CHAPTER IX. In Actions on Contracts, 111 

CHAPTER X. In Murder Trials, - 122 

CHAPTER XI. In cases of Robbery, - 136 

CHAPTER XII. Illustrations of a Man Conducting His 

Own Case, 144 

CHAPTER XIIL Peeping into a Juryman's Mind, - 161 

CHAPTER XIV. Several Modes of Cross-Examination, 103 

CHAPTER XV. Cicero's Defense of Roscius for Murder, 181 

CHAPTER XVI. The Story of the Tichborne Claimant, 196 

CHAPTER XVII. Mr. Hawkins' Cross -Examination 

in the Tichborne Case, - - 244 



ILLUSTRATIONS IN ADVOCACY, 



CHAPTER I. 



PRELIMINARY. 

In writing these illustrations I have endeavoretf 
to effect three objects: first, to give the young 
advocate some warning of the dangers that lurk in 
his path, without alarming him; secondly, to indi- 
cate the means of escape, without involving an 
inglorious retreat; and, thirdly, to entertain him on 
his journey, without frivolity. 

In surveying a wide expanse of country we 
obtain glimpses of beauties as well as blemishes; 
but the beauties are not always to be courted, nor 
the blemishes to be avoided. In advocacy, I 
observe rather its mistakes than its perfections. The 



11 PRELIMINARY. 

former you may fix as landmarks to guide your 
course; the latter you can scarcely hope to appro- 
priate as possessions. Moreover, the blunders are 
common property, which everyone has a right to deal 
with as he pleases. Perfections are the inheritance 
and birthright of the few. We may toil on 
towards perfection, and even approach its enchanting 
confines; but the way is rugged and wild, strewn 
with the errors of those who have preceded us, and 
dangerously near the treacherous quagmires, towards 
which the spectral dazzle of cross-examination, 
lures us to destruction. 

If I presumed to set up an adviser of reck- 
less youth, I should say seek only to avoid blun- 
ders; take no thought for perfections, they will 
take care of themselves ; they are not necessary to 
your existence ; and even, if they should stimulate 
your ambition, they should never divert your atten- 
ion from its duty. Labor not to be rich in dis- 
play, but" to be competent in your homely 
requirements. 

Looking around, then, from our little hillock of 
observation ; and, permitting the eye to rove 
unchecked over the vast field before us, we perceive 
that many persons regard advocacy as a rough and 
tumble Scramble, and not as a delightful and fas- 
cinating Art; as a Game, boisterous and rude; in 
which you are supposed to pick up what you can ; 
as a Football match ; in which the Cause is kicked 
about, amidst much unnecessary confusion, from 
pillar to post, from hedge to ditch; where nobody's 



PRELIMINARY. Ill 

shins are spared and no one's susceptibilities 
regarded. Advocacy is not this ; it is more a matter 
of nice calculation and foresight, where one move 
may affect many; where the object of the mover is 
not always visible, till its success is assured; and 
where your probable move is calculated upon the 
possibilities of your opponent's. 

No one can go through the Courts without seeing 
that cross-examination often proceeds without 
method, order or system; as though it were a hap- 
hazard kind of business that has to be done 
mechanically, as the officer administers the oath to 
the jury. You may see everyday advocates cross-ex- 
amine as though their object were to develop, not 
their own case, but their opponent's. They ask 
questions which the other side cannot, or dare not, 
ask; and, instead of breaking down their oppo- 
nent's case, they build it up in the strongest possi- 
ble manner, as though they had been retained on the 
other side. Nor is this unskillful mode of proceed- 
ing by any means confined to juniors. 

I daresay everybody thinks he could "do a breach 
of promise of marriage;" and wishes he only had 
the opportunity of "bringing himself out" with 
one. It looks so remarkably easy, and is so full of 
excitement and fun ! Fancy reading the love letters ! 
So, anybody could drive a locomotive, in the sense 
of pulling the lever and setting the machine in 
motion. But what if you don't understand the gra- 
dients of the line, or the signals? What if you 
don't know how to regulate pace and put on and 



IV PRELIMINARY. 

shut off the steam? and how to apply the brake 
when necessary? Where, I wonder, will your pas- 
sengers be, should a goods train or an excursion be 
a trifle late? Why, you will come into collision 
with the judge and jury before you can sound your 
whistle. Advocacy is not quite pulling a handle 
and going ahead. I make these observations, 
because I intend to take, as my first illustration, an 
action for Breach of Promise of Marriage; and, 
without attributing blame to anyone except the 
client, I intend to show how the defence in a breach 
of promise may collapse from want of proper treat- 
ment, even with the tender nurturing of an expe- 
rienced nurse. The course of advocacy does not 
always run smooth. For the sake of my illustration 
the case must be one, where, albeit the lady was 
pretty and the promise broken ; no substantial dam- 
ages, under the circumstances, could have been 
secured without some untoward event. There might 
have been a farthing or a withdrawal of a juror. I 
have chosen a curate of High Church proclivities, as 
the defendant, because it will make the case more 
interesting, and lend an additional charm to the fas- 
cinating scene. It is not often we get a clergyman 
to play the part of defendant in such a case ; but, 
when we do, the excitement becomes intense and 
the action religiously picturesque. 



ILLUSTRATIONS IN ADVOCACY. 



CHAPTER II. 



IN ACTIONS FOR BREACH OF PROMISE OF MARRIAGE. 



FROM a somewhat careful observation, I have 
reluctantly come to the conclusion that in five cases 
out of six I would back the advocate and not the 
case. This may sound-rather like sporting phrase- 
ology, but it is not the less expressive or true on 
that account. I would not compare the ordinary 
advocate to the great jockey who, as a rule, gets the 
best "mounts," for the ordinary advocate cannot 
always choose his mounts, and often gets put on a 
rank outsider. Nevertheless, it is the advocate 
after all that I would put my money on. An utter- 



"2 ILLUSTRATIONS IN ADVOCACY. 

ly bad case is good for a young counsel, but a 
great one will hardly 'ever entertain it. He picks 
the cases he will conduct, and likes something that 
"has a leg to stand on," something that will "go." 

His chief power, when he is compelled to fight a 
bad case, lies in attack, and if he can break down 
the good cause of his opponent he is a long way on 
the road to establishing his own. Suppose then we 
start with an interesting action for breach of prom- 
ise of marriage. A good advocate will almost win 
a case of this kind before he begins, while an 
indifferent one will sometimes lose it even if the jury 
give him a verdict, for in all probability the dam- 
ages will be so small that his client will be left in 
debt to his solicitor for costs. 

There is no more popular action than that for 
breach of promise of marriage ; none more distaste- 
ful to a judge or interesting to a jury, and I trust it 
will never be abolished, because it at least acts as a 
check to artless and fickle prowlers after beauty, 
who make a mock at the feelings of the too trustful 
and confiding fair one, whose chief prospect in life 
is a happy marriage. Abused this form of action 
unquestionably is, and so is every other form ; but 
it has mainly been brought into contempt by the 
ridiculous handling which it has undergone by 
unskillful advocates. In a business-like manner it is 
seldom managed. Sometimes counsel think it an 
occasion for humor ; but if it were, how many 
advocates are there who possess this quality ? What 
humor is there in the ordinary speeches that too 



BREACH OF PROMISE OF MARRIAGE. 3 

often transform the luckless plaintiff into a 
laughing stock before ever she comes into the 
witness box? What of such an observation as 
this: 

"Gentlemen, it has been well said that the course 
of true love never did run smooth." There is 
nothing humorous in the saying, yet it provokes a 
laugh ! And why ? Because everybody knows that 
the learned gentleman is about to lay bare some of 
the tenderest feelings of the human heart, and to 
wound its most delicate susceptibilities he is about 
to dress up pure sentiment in the raiment of 
unseemly language, and to present a tawdry picture of 
a living passion. It is the forseen incongruity that 
provokes a smile, and not the humor of the coun- 
sel. The same laughter is produced when he 
attempts the sentimental. He unconsciously, and in 
a mild and shadowy form, imitates Sergeant Buzfuz. 
He is Buzfuz without his power. He does not reach 
the hearts of the jury, but unconsciously provokes 
their sense of the ridiculous: "Gentlemen, what 
money can compensate for injured feelings, for 
blighted hopes, for blasted prospects, for the loss of 
all that happiness that she fondly believed was in 
store for her? You cannot place her in the position 
she once occupied with her heart at her own dis- 
posal, for that heart is already given a way, although 
given to one who is unworthy of it ; but you can do 
this, gentleman, you can give her such compensation 
as you think her entitled to, and you can punish this 
man in the only way in which he can be punished, 



4 ILLUSTRATIONS IN ADVOCACY. 

and that is by making him pay." It comes to this: 
"How much for this heart, gentlemen?" 

That is an eloquent speech, truly ; I have heard 
it scores of times, but it begets no sympathy it 
brings no damages. If damages are obtained they 
are obtained by the facts and not by the speech 
which generally reduces them. Moreover, it is an 
incorrect mode of putting the case, as the judge will 
by and by point out. Punishment is not the object 
nor intention of the action for breach of promise of 
marriage. Punishment is inflicted for a crime or mis- 
demeanor. A breach of promise is neither the one 
nor the other. And although the advocate proba- 
bly intended his remark to be figurative, the judge 
will so strip it of its figurativeness that it will ap- 
pear as a naked untruth at last, or worse, as a legal 
deformity. "The measure of damages," the j 
will say, "is what the plaintiff has lost by the 
performance of the contract, and anything you may 
award as compensation for injured feelings. No 
punishment to the defendant." Cases are too fre- 
quently opened as the boy opened the bellows to> 
see where the wind came from. 

With these prefatory observations I will intro- 
duce the reader to the court where this exciting 
action is about to take place. 

I observe that there has been a desire to settle, so 
as to prevent the scandal which must arise from the 
proceedings being gone into ; and no wonder, for the 
whole country will read the report of this ecclesias 



BREACH OF PROMISE OF MARRIAGE. 5 

tical romance. The action is brought by a very 
interesting and strong-minded lady against an inter- 
esting High Church curate. Some talk there has 
been of a settlement to this effect, that there shall 
be no damages and each party pay his own costs. 
But a breach of promise is not repaired like that. 
The case looks as neat and capable of winning as 
beauty ever is ; so all overtures of this kind are 
scornfully rejected. The parties might have 
arranged matters before a penny had been spent in 
litigation, if the fair promisee had been so minded. 
But so minded she was not, and is not disposed to 
haul down the flag when victory is waiting her. 
High Church, therefore, looks contemptuously down 
from its frowning height and waits result. 

It is a great satisfaction to the eager public who 
have come so far to see the conflict. People came 
from all directions like the throngs who went to 
witness the tournament at Ashby-de-la-Zouch in the 
olden days. Every inch of court was filled up. 
Rosy-cheeked country lasses beamed with excite- 
ment and modesty. Fair country ladies pressed up 
to his Lordship's chair. His Lordship peeped out 
from the centre of a living radiant bouquet. It was 
a pity that the young curate sat in court, for he was 
the centre of at least four hundred yearning eyes. 
He would hardly have been more attractive in his 
vestments. The dear young things quite gloated on 
him. What a sweet little suppressed titter and rus- 
tle of expectation there is in the galleries ! You 
can almost hear the beating of their tender hearts, 



6 ILLUSTRATIONS IN ADVOCACY. 

as the well-dressed crowd is speculating upon the 
interesting particulars that will be revealed of curate 
life and curate love, and wondering whether any- 
thing in the shape of scandal will be disclosed. We 
may even find out, think the male portion of the 
audience, what is that mystic religious influence 
which makes the curate so attractive to female minds 
and so penetrative to female hearts. 

I can promise the eager crowd that they will find 
out nothing of this from the opening of the case, or 
from the examination-in-chief ; and the most that 
will ever be learned from those sources of inform- 
ation, unless I greatly mistake the advocates, is 
that if you want to catch a curate you must warm 
his feet, that is, begin Avith the slippers. I do not 
predict that this is how the counsel will open the 
case. He was far too shrewd an advocate to make 
a clumsy jest of a serious contract. Contract or no 
contract was the first point. The pleadings said the 
promise was conditional, and the condition had not 
been fulfilled. The condition set out was that the 
curate would not marry until he was in a position 
to do so. The position aimed at was a snug, com- 
fortable living. So there was business to be done 
in this opening ; and the business was to show fulfill- 
ment of the condition, or waiver of it by the defend- 
ant, or a subsequent unconditional contract. To the 
latter part mainly the counsel's efforts were directed, 
although, by means of an interesting correspond- 
ence, they endeavored to establish not only this 
point but the waiver. So you see there was some- 



BREACH OF PROMISE OF MARRIAGE. 7 

thing of art here. The one point held in reserve as 
the decisive trump card, not to' be thrown away or 
played too soon; and another card or two, likewise 
held well in hand, capable of taking tricks. A good 
hand it certainly is, and might be thrown away very 
easily. But not by Mr. Longfellow, the plaintiff's 
counsel. Bless you, he knew the value of his 
opponent's cards by one or two inadvertent obser- 
vations. 

"Not necessary," says High Church Counsel, "to 
read all the letters." 

That immediately raises the suspicion that he is 
afraid of them. They are certainly not in his 
favor, and therefore it is best to see every page of 
this delightful correspondence. Every letter must 
be read after this ; there may be a waiver in some 
and a fresh promise in others. Very few sensible 
men are afraid of ghosts nowadays, so there is some- 
thing more than a suspicion that in the mind of the 
defendant there is substance in the letters objected 
to. First point, reader, which "having found make 
a note of." 

It was not a sentimental opening. Sentiment is 
generally out of place in the construction of a con- 
tract, so the learned counsel postpones sentiment, 
and deals at present with hard concrete facts. It 
will be time enough to touch up the feelings of the 
jury when he replies. You may sometimes advan- 
tageously excite the compassion of a jury in your 
opening; but you will not be wise to do so if there 
are to be many witnesses and a number of letters 



ILLUSTRATIONS IN ADVOCACY. 

submitted to their judgment. Let us have the 
business first, and if that can be satisfactorily set- 
tled, the time may come when sentiment maybe 
invoked as a powerful auxiliary to increase the 
damages. 

Let the facts speak. If they are ambiguous you 
have argument; if they are clear you want none. 
When proved you have your measure of damages 
to consider, and then will be the time to estimate 
the conduct of the defendant, the position of the 
plaintiff, and the injury to her feelings, all which 
topics must be handled without maudlin sentiment- 
ality or exaggeration. Manhood must prevail. 

So Mr. Longfellow, Q. C,, opened the case in a 
very business-like, unromantic, and common-place 
manner, much the same as he would open a case 
for damages for non-delivery of goods. What mat- 
tered that the goods were a curate? There was the 
promise and there was the non-delivery. It was 
enough, as will be seen by the progress of the case, 
and yet it was but a little, as was shown by the evi- 
dence. If you promise you must perform, or pay. 
The defendant promised a curate, and did not 
deliver him. That's the simple case. 

I am not going to write the tittle- tattle of the 
trial for the amusement of the lay reader. I leave 
that to the newspapers, and content myself with 
giving the real points of the case for the informa- 
tion of the advocate, with such extras, or, as the 
Americans would say, fixings, as may be necessary 



BREACH OF PROMISE OF MARRIAGE. 9 

to enable the general reader to appreciate the cir- 
cumstances. 

There was an absence of all that flimsy jocularity 
in the opening, which so often damages a plaintiff's 
case, and there was no attempt at ridiculous pathos. 
The injured feelings were left in the background 
like an ambuscade, ready at the right moment to 
spring out and deliver a deadly fire just when it was 
the least expected; no concealment of facts by 
maudlin sentimentality, but the sentimentality left 
to be discovered by the facts. If your facts can do 
this you need not, if they cannot you cannot. 

The plaintiff was as ptepossessing in appearance 
as any plaintiff need be ; but I should say she was a 
lady of strong will and considerable mental capacity 
far to heavily freighted, one would think, for the 
wife of a curate more adapted, perhaps, for the 
consort of a bishop. Her capacity for letter-writ- 
ing was known by its fruits, of which there was an 
abundant harvest. How the love-making began 
need not be written. Everybody knows that with 
the Church it must begin humbly with the slippers. 
It is a malady, as young ladies are well aware by 
unmistakcable diagnostics, which quickly develops, 
and when it reaches the heart the patient is gone. 
There was plenty of talk, you may be sure, in the 
progress of this love-making, about cassocks, stoles, 
albs, altar-frontals, chasubles, and the rest of the 
gaudy ecclesiastical millinery so dear to the female 
heart; and there was much interesting evidence of 
endearments that sometimes spring from the sweet 



10 ILLUSTRATIONS IN ADVOCACY. , 

harmony of souls iii a state of grace, through all of 
whk-h sweet Love threaded her silent course, all 
unobserved and unobtrusive, gently spinning her 
mystic toils in quiet strength around the heart of the 
beautiful curate. 

The story came out well in the examination-in- 
chief there was not a gap discoverable anywhere. 
It was like a charming piece of ecclesiastical em- 
broidery where the pattern is graceful and complete 
and you see the golden thread everywhere in its 
simple and tasteful beauty. Still, there was an im- 
pression throughout the Court that the superior 
mind was in the witness-box, and the weaker under 
the counsel for the defence, and that the mind and 
passions were in harmony. The plaintiff unques- 
tionably was the possesser of strong feelings ; in 
fact, she was what you might call "clinging" in her 
loveliness. The attitude she assumed in her devo- 
tion reminded one of the position of the confiding 
female in the picture clinging with rapturous agony 
to the rock, which is in the shape of a rough-hewn 
cross, while the billows are breaking around and 
above her. Now, I would observe that a strong- 
minded lady in an action for breach of promise is 
not always a good witness. She is generally too 
emphatic and too certain too absolutely there. 
Juries glance at her and think what would be their 
domestic freedom under such a government. No 
witness makes less impression than a hardened 
scientific female; the next to her is the strong, con- 
fiding, clinging, sentimental, religious, creature, 



BREACH OF PROMISE OF MARRIAGE. 11 

who throws herself into every adventure as if she 
were taking a header from a boat. Her case is too 
absorbingly good, and she is always too much in- 
jured. 

Not a great deal of damage was done by the story 
of the love-making, the taking up by the defendant 
of his abode in th$ house of mamma "for the sake 
of companionship and convenience," the having 
some one to care for and to comfort him, the slip- 
per-working and the slipper-warming; the getting- 
up of evening classes, the discussion of abstruse 
doctrines of divinity, the reading together in the 
Greek Testament, the discourses upon the Athan- 
asian creed and the colors of the curate's vestments. 
All these and a hundred other pious incidents of 
ecclesiastical life in a country town, were but com- 
mon-places which might have been compatible with 
platonic friendship. What an artless, innocent 
question was now put in faltering accents, and with 
suppressed emotion. 

"And after all this treatment are you excuse my 
asking you but are you fond of him still?" 

The plaintiff looks at the downcast, helpless curate 
with longing, yearning eyes for a minute and-a-half , 
and then, clasping her pretty, delicate hands on the 
ledge of the witness-box, exclaims: 

"Oh, yes very, very fond of him!" and then 
she puts her lace bordered handkerchief to her eyes, 
and plainly visible in her whole form is the deep 
emotion which stirs within her, as though some vol- 
canic eruption were imminent. This touch of gen- 



12 ILLUSTRATIONS IN ADVOCACY. 

uine sentiment does really make the jury look up 
for a moment, and every bucolic eye beams with 
sympathy. It was splendidly done, and you could 
not for the life of you tell whether it was real or the 
quintescence of acting. At this supreme moment 
every female eye, moist with sympathy, was turned 
upon the defendant. Every fenjinine heart palpi- 
tated with an indefinable yearning ; and every gen- 
tle bosom heaved with tender emotion. At this ec- 
static moment what an interesting creature the high 
Church curate was ! Never in any Court was pro- 
duced such a delicate and delicious sensation ! What 
a real living drama was being enacted ! Then once 
more those lustrous, dangerous eyes of the plaintiff 
beamed at the faithless clerical swain over the damp 
handkerchief, and from their innermost depths 
welled out the passion of those bygone days ; and, 
oh ! what a depth it was ! Very, very deep ! 

As the learned counsel for the defendant artisti- 
cally arranges his papers, and with ceremonious dig- 
nity rises to cross-examine this heart-broken plaint- 
iff, what breathless emotion there is in the galleries ! 
Every lady readjusts herself, for the long anticipated 
treat is coming. They all expect her to be cut up, 
and her innermost heart laid bare. The scene will 
be nothing without this scientific anatomical dissec- 
tion. AH depends upon the cross-examination. 
The Church can hardly go into the witness-box and 
deny the promise or the breach. She may sit in 
Court and suggest questions, expose secrets, and 
otherwise assist the plaintiff; but there is no cer- 



BREACH OF PROMISE OF MARRIAGE. 13 

tainty about her submitting herself to the ordeal of 
cross-examination. The counsel needs to be subtle, 
acute and skillful, for he has to deal with a clever, 
self-possessed, albeit heart-broken, woman, who can 
see right through him, as though he were made of 
the most translucent glass. 

"Now," he asks, with placid and gentle tones, 
"did you frequently converse with him about mar- 
riage ?' ' 

"Oh, yes," answers the plaintiff; "frequently 
frequently. It was his constant theme." 

"You liked it I suppose? 

"Oh, yes. It was agreeable." (A sigh.) 

"You were desirous of marrying him?" 

"Certainly. Why should I not be? I loved 
him." 

No bashful reserve you see; no insipid hesitation. 
All was business-like and straightforward ; pure as 
the stream and open as it course. So far so good. 
And the jury think she was pretty well up to her 
work. 

"Did he tell you that his income would not permit 
him to marry ?' ' 

"Oh, yes; many times." (How she helps the 
learned counsel in his cross-examination. !) 

"And said he would not marry until he had a liv- 
ing of his own?" 

"Hedid. Oh, yes; many, many times." 

"What did you say to that?" 

"That I would try and get him one, of course?" 

Here there was considerable laughter ; the learned 



14 ILLUSTRATIONS IN ADVOCACY. 

judge himself moderately and judicially sharing the 
merriment. The javelin men and ushers all laughed, 
and all shouted "Silence !" and then gave way to 
their feelings again, all placing their hands in front 
of their mouths. 

"Well," continues the counsel, "you never got 
him one, did you?" 

"Not actually got it, because he refused to accept 
it." 

"But did you get him one?" 

This was a question too many, the answer was 
"Yes," and it necessarily led to further and better 
particulars. Having been put in cross-examination, 
it must be cross-examined upon, and that is one 
danger of a question too many. You have to try and 
get rid of it, to qualify or alter it, which you seldom 
can. It is like the letting out of water the stream 
increases, and of its own force widens the breach. 

"Where did you get him a living?" 

"At St. Swithin's." 

"Do you mean to say St. Swithin's was ever 
offered?" 

"Oh, yes; and I have the letter to prove it !" 

"We'll have that letter in," says Mr. Longfellow. 
"Oh, yes, we'll have it in. I don't wish to conceal 
anything," says the High Church counsel, with 
charming innocence. 

And then comes the letter, carefully preserved by 
the plaintiff, who valued every scrap of paper that 
bore the defendant's handwriting. It was a simple 
letter enough ; one would have thought not worth 



BREACH OF PROMISE OF MARRIAGE. 15 

preserving ; but it turned out to be valuable in this 
way, that if the promise of marriage had ever been 
conditional, the letter proved that the condition had 
been faithfully performed. 

The case, therefore, was well on its legs, such as 
they were, but a tottering sort of creature it never- 
theless appeared, quite incapable of bearing any ap- 
preciable weight of damages. There had been too 
abundant spiritual excitement; too much slipper 
warming. The mystical union of souls had been 
too frequently insisted upon ; and it was somewhat 
difficult to ascertain whether the attachment had 
been the highly sublimated process of spiritual 
attraction, or the more worldly and more generally 
understood proceeding called "courtship." It will 
be tested, perhaps, by-and-by. and its true nature 
revealed. 

As a rule, a defendant in a breach of promise should 
not be in Court, unless his personal appearance is a 
good defence to the action. In the present case, 
the defendant unfortunately was present, the silent 
and downcast spectator, as well as the object of in- 
tense admiration to all the female portion of the 
audience. He was at once a hero, a champion, a 
conqueror and a martyr. Up to this moment I 
envied him. It was curious to notice how, when any 
interesting question was asked, all the beaming 
female eyes were fixed on the pretty plaintiff ; and 
how, when the answer was given ( equally interesting) 
all those eyes immediately turned and riveted them- 
selves on the reverend defendant. It must have been 



16 ILLUSTRATIONS IN ADVOCACY. 

like sipping honey to the gushing fair ones in the 
gallery ; and I believe the case was so exciting that 
the young ladies would alternatively have liked to be 
now the plaintiff and now the defendant. It was so 
inexpressibly sensational. At present, however, 
there seems but a remote chance of any damages 
that could be termed substantial. But now a phe- 
nomenal question shoots across the legal firmament, 
arising, no doubt, from special instructions, which 
gives importance to the case ; the whole atmosphere, 
in fact, is ablaze. 

"Is it not a fact," asks the counsel, "that the 
defendant and you were three weeks in the house 
without anyone else being there ?' '. 

A pregnant question truly ! What a flutter 
there was in the gallery ! Now the scandal's com- 
ing ! 

"Oh, the clerical profligate !" and "Oh, ' well 
let us wait. What, is she going to deny the "soft 
impeachment," the mild imputation, the suggested 
profligacy ? Shame ! Are there no dark pious 
mysteries to be revealed ? no slumbering secrets to 
be awakened for the delectation of this excited 
audience? Surely, something has been whispered 
by those consecrated lips into the learned ear of the 
enterprising counsel ! He would not, could not, as 
a Queen's Counsel, with a dignity and reputation to 
support, have so alarmed the heavens with mere 
fireworks. Oh, no, something must come of it, if 
its only an earthquake. To change -my simile, 
this love in a cucumber-frame, (I mean this clerical 



BREACH OF PROMISE OF MARRIAGE. 17 

forcing-house), is not going to evaporate into 
sighs. We shall reap the fruit of our patient 
expectation in due time, because no question is put 
in cross-examination without adequate motive, and 
without the utmost certainty that the answer cannot 
injure your client. 

The dear girl was taken all aback; up went her 
handkerchief to her eyes, and she made a succes- 
sion of bubbling noises very like what you hear 
when you pour water rapidly out of a narrow- 
necked bottle. After the water was all out the fair 
and broken-hearted promisee gave a little shriek, 
and cried "Oh, no no no, my lord ! Oh, no 
never ! Oh, how cruel!" and she refused to be 
comforted. Every one pitied her, except the coun- 
sel for the plaintiff, and they pitied the defend- 
ant. 

"Now," says Mr. Longfellow's junior, "you've 
got him." 

"Hold your row!" says Longfellow, with a 
wicked expletive, in a small whisper. "I know I 
Now he shall have it. We've got him nicely !" 

It took some time for the addressed plaintiff to 
recover her equanimity, and compose her nerves, 
because after such a severe shock to the physical, 
mental and moral systems several heart-rending 
relapses were necessary, and water had to be 
brought. You can't get over a big thing like that 
in a moment, whatever your courage and virtue 
may be. 

I never knew why the question was asked, and if 



18 ILLUSTRATIONS IN ADVOCACY. 

the reader thinks it over for a month he will be no 
nearer to a solution. At first I imagined it was to 
lay the foundation for saying that the defendant 
had seduced the plaintiff as well as deceived her; 
but even if so, one could not perceive how it could 
go in mitigation of damages. Nor could I under- 
stand how it in any way went to the lady's credit. 
Nor how it affected either the promise or the breach. 
Truly it was one of those mysterious displays that, 
like erratic play at whist, defies all calculation and 
conjecture. But it finished the cross-examination, 
you may well believe, and very nearly killed the 
plaintiff. If it had killed her it would have been 
the defendant's only way out of the difficulty; for 
Lord Campbell's Act could not have helped her rel- 
atives. 1 But, unfortunately for him, such is the 
springiness or elasticity of the fair sex in actions of 
this nature that she recovered sufficiently to be 
re-examined just sufficiently, and no more. And 
in what a grave and business-like manner she was 
re-examined ! All amusement had vanished. Things 
had assumed a serious aspect, approaching almost to 
indignation. The earthquake must come. The 
defendant hung his head, as well he might, repent- 
ant when too late, but bearing with Christian meek- 
ness and resignation the pitiless storm as it bore 
down upon him. From all sides the storm came; 
even from the galleries, because, after exciting the 

1 In other words an action for breach of promise of marriage 
does not survive. Stebbens v. Palmer, 1 Pick. 71 ; Wade v. 
Kalbfliesch, 58 N. Y. 282. 



BREACH OF PRO3IISE OF MARRIAGE. 19 

curiosity of the fair auditors with an appearance of 
approaching scandal, it was a shame to leave it 
ungratified. What, shall there be no stain upon the 
plaintiff's character? "What could be the meaning 
of such a question unless it was to be followed up 
by at least an insinuation that the plaintiff 
was no better than she ought to be. It 
was cruel (not to her, but to the fair sex in the gal- 
lery), and the disappointment was unbearable. 
They quite assented to the volley of indignation 
which was indirectly poured upon the meek curate's 
head. There ought to have been something piquant 
after such a question ; but not too much indignation, 
if you please, because you don't want to do all the 
punishment in re-examination, or even in your 
speech to the jury. 

After all, the defendant may go into the box and 
deny the promise, or it may even be hoped he will 
contradict the lady about the house business ? But 
no: he's only a spectator in the scene; he has come 
like the rest of the audience, simply to hear the 
trial, and probably to learn some useful lesson in 
human nature for the delectation of his congrega- 
tion next Sunday. He contradicts nothing, and 
does nothing but hold down his head as Longfellow 
anoints it with a copious shower of delicate invec- 
tives, and points to him with a substantial and well 
straightened finger of scorn as he says, "That's the 
man who dictates that foul insinuation against the 
virtue of the woman he has wronged." It was a 
good speech, was Longfellow's. You could tell 



20 ILLUSTRATIONS IN" ADVOCACY. 

from it that Longfellow was a father, and that the 
jury were fathers, and the jury nodded their 
fatherly heads as he glowingly recited the wrongs of 
the lady, extending, as they did, over a series of 
years, and culminating that day in the foiled attack 
upon her character in the witness-box. 

Longfellow's speech was like a good clap of 
thunder; not the least uncertainty in its meaning; 
no one could mistake it for the ill-natured growl of 
an angry churl, and it did all the work which was 
required of it. Declamation was its chief feature, 
and aggravation of damages its main object. Now 
there was only one way to aggravate damages in 
this case, and that was by aggravating the feelings 
of the jury. You couldn't go into pounds, shill- 
ings and pence ; all that was beside the question 
The jury had seen the injured feelings, and they 
saw that no money within the probable means of 
the defendant would be too much to make him paj 
after the exhibition he had made of himself in 
court. Mr. Longfellow's clap of thunder burst 
with blessings on the plaintiff's head, and down 
came a copious shower of golden damages. There 
was no need to awaken sympathy ; no necessity to 
go into figures ; and although the judge said they 
must not punish him even for the phenomenon he 
had insisted upon shooting into the heavens, the 
jury gave the plaintiff a verdict for a good many 
hundred" pounds. 

The fair sex drew in its breath and speculated on 
its own chances of a verdict on some fine day. 



BREACH OF PROMISE OF MARRIAGE. 21 

The plaintiff was being comforted and soothed with 
sal volatile and eau de cologne when the verdict was . 
returned and she just revived in time to be escorted 
out of court by her sympathizing solicitor before 
the fair sex could rush from the gallery, and 
make her a gaping stock in the hall and the 
street. 

Everybody said it served him right, but no one said 
it served the plaintiff right. Let the student draw 
all necessary inferences. It is not for me to point 
the moral more significantly than by saying the 
action was for Breach of Promise to Marry but the 
verdict was for Slander ! 



CHAPTER III. 



IN ACTIONS ON COVENANTS IN BILLS OF SALE. 



"We find ourselves again in a Court of Justice. 
As we enter, the case of Hawk v. /Sparrow is called 
on, and the learned counsel for the plaintiff opens 
it admirably opens it. Poor Sparrow, there is no 
chance for him evidently ! What a wicked sparrow 
he seems to have been ! Years ago, it appears, he 
was a market gardener, and had befriended a gro- 
cer, by lending him, from time to time, sums of 
money which at last amounted to 150, and for as 
much as the grocer, whose name was Thriftless, had 
nothing to pay, Mr. Sparrow asked him for a bill of 
sale on his household goods. Mr. Hawk, being 
Thriftless' lawyer, drew up the bill of sale, and 
Sparrow advanced a sum of 30, taking the bill of 
sale for 180. Thus the money was secured, so far 
as a legal document could accomplish that object. 
Some time after, Thriftless, going from bad to 



COVENANTS IN BILLS OF SALE. 23 

worse, gets into liquidation, and so wipes out his 
debts ; but Sparrow has nothing to do with the liquid- 
ation and after the proceedings were over, 
Thriftless continues to pay the interest on the 
bill of sale: an illegally immoral proceeding, no 
doubt. Now, Sparrow was to pay Hawk for 
drawing up the bill of sale, in the event of Thrift- 
less failing to do so. Thriftless did fail to do 
so, and then Hawk applies to Sparrow. Upon 
this, Sparrow says in his little chirping way, "I 
can't be bothered about this thing for ever; I 
thought it was all settled ; but I will tell you what 
I will do. If you like, Mr. Hawk, you shall have 
the bill of sale in satisfaction of the costs incurred 
in drawing it up, and some few pounds I owe you 
for other matters" all incurred through Thrift- 
less. 

Hawk flies at this proposal, with his talons wide 
spread, and takes the bill of sale in satisfaction, 
and there the matter seemed amicably ended. This 
was twelve years ago. Time rolls on, and now 
Hawk, having grown grey in the pursuit of his pro- 
fession, sues Sparrow on a covenant in the assign- 
ment of the bill of sale, which was to this effect: 
Sparrow covenants with Hawk that the said debt 
was a good and subsisting debt. The counsel 
opens that it was not a good, subsisting debt or a 
subsisting bill of sale at that time, because all 
liabilities had been washed away by the flood of 
liquidation proceedings. 

The judge nods his head at this, and evidently 



24 ILLUSTRATIONS IN ADVOCACY. 

thinks it an undefended case. The judge is "against 
the defendant:" expresses himself to that effect, 
and counsel for the defendant seems in bad case. 
It's an up-hill fight when the judge is against you; 
but if you believe your sparrow has a feather to fly 
with, you ought at least to afford him the opportun- 
ity of a little flutter. Perhaps the judge doesn't 
know your case, and may alter his opinion when he 
does. 

"What answer to this have you got, Mr. Jones?" 
asks his lordship. 

Now Jones, be firm ! don't disclose your case even 
upon this seductive invitation before even your op- 
ponent has made out his own. Let us first of all see 
what case the plaintiff has, not upon the opening but 
on the evidence. 

It is as dangerous a proceeding to disclose your 
hand prematurely as for a general to send to the 
enemy a message informing him that at a particular 
time he should take possession of a certain pass, 
make a flank movement on his enemy's left, throw 
out his right wing, and then, covered with artillery 
on the north, totally envelope the opposing forces. 

As the judge asks the question, just glance your 
eye at your opponent and see with what an eager 
glance he awaits your answer. But if you are wise 
you will not satisfy that watchful glance. He is 
turning over the sheets of his brief and looking you 
hard in the face all the while. But you must answer 
his lordship, and so you say you believe you will sat- 
isfy his lordship when your turn comes: at least, if 



COVENANTS IN BILLS OF SALE. 25 

your instructions are correct you have a complete 
answer. You may be young, no doubt, and your 
opponent may be old and wily, but you have lived 
long enough in the world to know that he cannot 
catch even a sparrow by putting judicial salt on his 
tail like that. 

"Very well," says his lordship; "only it seems 
to me you are bound by the covenant." 

"Not till after verdict, at all events," thinks the 
imperturbable Jones ; so he says respectfully : 

"I hope to alter your lordship's opinion when you 
hear the case. At present my friend has called no 
evidence." 

"Oh, don't let me interfere, I pray!" says his 
lordship. 

So not a man of Jones' troops moves, and there is 
no message sent to the enemy of >his intended opera- 
tions. Possibly, Jones may take him in the flank or 
rear by a well-concerted line of action by-and-by. 
We shall see. 

But here is a very benevolent gentlemen stepping 
into the witness-box, and he looks a saint indeed 
with the precious Testament in his hand. This is- 
Mr. Hawk himself. How beautifully he gives his 
evidence. You almost parody the touching line of 
Watts: "How neat he spreads his bird-lime!' 
Never was evidence more fairly and temperately 
given, and if ever there was a counsel who knew 
how to examine a witness-in-chief it was Hawk's. 
He never omitted the smallest material detail. He 
reminded me of a sharp boy piecing together a puzzle 



26 ILLUSTRATIONS IN ADVOCACY. 

map of the world. One after another in went conti- 
nents, rivers, rills, hills, dales, lakes, waterfalls, and 
everything that goes to make a complete hemisphere. 
The learned counsel left out nothing, not even so 
small a county as Rutland; but I have known boys 
leave out not only a county, but a country as large 
as Russia, and then wonder why their world is not 
complete, and abuse the maker of the map. Depend 
upon it, no case is complete unless you have all its 
parts ; and it was a knowledge of these parts, and of 
their relative positions with regard to the whole, which 
made the learned counsel for the plaintiff in this 
case so formidable an antagonist. It seemed impos- 
sible to get over this well-adjusted evidence. Not a 
gap or a fissure was visible, every tree and ditch 
were there. Nothing daunted, however, the placid 
Jones commences his cross-examination after the 
manner of a man who feels that there is a wrong 
adjustment somewhere. He has to get rid of that 
covenant which his lordship seems to believe an 
impossibility ; a covenant being a very hard and fast 
sort of obstacle, and albeit twelve years old none 
the worse for wear. Now, who ever heard of cross- 
examining a covenant out of court ? How can you 
cross-examine a fly out of a spider's web? No 
spider ever heard of such a thing since spiderdom 
became an institution. Otherwise what's the use of 
webs, and what the necessity of flies? Webs as 
you know are fastened by means of guy-ropes to 
the sides of beams or walls, and if you wish to 
bring down the web, you have to detach first one 



COVENANTS IN BILLS OF SALE. 27 

guy-rope and then another till the centre portion, 
being unsupported, comes down as it must. 

The cross-examination has been evidently pre- 
pared, and every question is carefully and skillfully 
directed to a particular point not always straight, 
mind, but always towards the object. 

"Did you know a Mr. Wobbler?" asks the 
counsel. 

The apostolic being reflects : did he know Wobbler ? 
he mentally repeats. "What does he want to know 
for? No, yes, no !" 

"Which is it, Mr. Hawk, no or yes?" 

"I really cannot say; I think I have heard the 
name, but its many years ago." 

"Let me refresh your memory. Was there a 
man who used to take possession for you when you 
put in executions under bills of sale?" 

"Dear me, that is an extremely awkward ques- 
tion," thinks Hawk, "execution and bills of sale! 
Bless me ! what will the jury think of me?" 

"You are a solicitor, Mr. Hawk, and ought to be 
able to answer without hesitation." 

"Let him answer," says his counsel. Question 
repeated. Hawk pulls down his gold eye-glasses as 
though they had been the cause of his hesitation, 
and says: "Oh, yes, to be sure ! I do remember 
now, there was such a person to be sure." 

But what has this to do with the case ? some judges 
would ask. It seems utterly irrelevant to the ques- 
tion of the covenant, as to whether years ago the 
respectable plaintiff knew a particular person. 



28 ILLUSTRATIONS IN ADVOCACY. 

Yes, your honors, so it does; but, your honors, 
as I have often perceived, do not know everything, 
and, as a rule, cannot be supposed to understand a 
line of cross-examination, which does not go through 
the exact issue like a thread through the eye of a 
needle. But your honors must be aware, if you 
have ever been riflemen, and had any practice at 
the target at long range, you never aim at it but 
just above or below, or at the left hand or the 
right, according to circumstances. You have to 
allow for "pull and windage." 

So the cross-examination proceeds on the usual 
lines which, seemingly crooked, are as direct as 
possible, and find the real issue as certainly as the 
streamlet, intercepted never so many times in its 
course, and twisted and turned in never so many 
uncertain ways, finds at length the point of junction 
with its river or lake. 

"Did Wobbler ever take possession for you under 
this bill of sale, Mr. Hawk?" 

"Oh, dear, no!" says Mr, Hawk, quite shocked 
at the preposterous wickedness of the suggestion. 

"Stop," says the learned judge, who from this 
moment perceives the line of march. 

"You say, Mr. Hawk, he never did?" 

"Oh, no ! my lord, certainly not." . 

"Just look at this letter," says the cross-exam- 
iner. Mr. Hawk fusses with his glasses, and finally 
adjusts them with an air of confidence, like one 
about to look the truth in the face without being 
ashamed of it as an eagle would face the sun. 



COVENANTS IN BILLS OF SALE. 29 

"Is that your writing?" 

"I have no doubt it is yes." 

Letter read, giving instructions to the said Wob- 
bler to take possession of the goods included in the 
bill of sale tlte day after the assignment to Hawk was 
executed by the defendant. 

A startling revelation, truly ! quite takes the 
learned counsel on the other side by surprise; 
nevertheless, he makes a motion indicating that he 
knows how to get over it. However, he can't leap 
the ditch, and therefore knows he must wad,e 
through it somehow, there being no plank long 
enough to bridge it. 

"But," says the plaintiff, quite gratuitously and 
quite as foolishly, "he never did take possession. 1 ' 

Then the question, "Do you swear that?" acts 
like a bearing-rein his head is instantly jerked up. 
He evidently doesn't know whether to swear it or 
not, but at last thinks it better to swear it. 

"Now, look at this letter," says the cross-exam- 
iner; it is in the plaintiff's handwriting, as sure as 
he is in the box, and bears clear reference to the 
taking possession by Wobbler, and actually asks for 
an account of the things he seized. 

But now passes through the mind of the wary 
Hawk a clear, good defence for the time being. He 
remembers that he told Wobbler to take possession, 
but he remembers also that Wobbler never did, and 
remembers it for this excellent reason, that Wobbler 
never gave him any account. 



30 II LUSTRATIONS IN ADVOCACY. 

"Where is Wobbler?" 

The plaintiff doesn't know ; hasn't seen him for 
years ; may be dead for ought he knows. 

Then he is asked whether Wobbler did not sell 
every article of fw niture that poor Thriftless had, 
even to his bed. 

Hawk scornfully repudiates the insinuation. 
"Certainly not; never a farthing's worth" this 
with great indignation. 

It was straightforward swearing enough, and 
unless the counsel really understands the business 
of cross-examination as being something different 
from the knack of putting impertinent questions, 
this Hawk will fly away with his Sparrow after all 
and make a meal of him. 

So he asks : 

"Do you swear that positively of your own know- 
ledge, or do you swear that you never heard of it?' 

Now, then, Patriarchal Hawk, what sayestthou? 
It appears to me that that is a question which, 
answer it as you will, you are caught as nicely as 
any foolish bird that was ever lured into a net. And 
this is a good point to remember in cross-examina- 
tion, that, if by a series of questions you can arrive 
at one, the answer to which must damage your oppo- 
nent, you have almost made a cripple of him. 

The plaintiff being a shrewd man sees his posi- 
tion. He is surrounded by the enemy. He looks, 
not in front of but within himself, pauses, balances 
his gold spectacles, and is evidently balancing some- 
thing else, namely, the respective value of alterna- 



COVENANTS IN BILLS OF SALE. 31 

tive answers. They seem pretty equal so far as he 
can judge. Any answer will be awkward, may be 
fatal, yet answer he must. 

But while this mental process is going on Jones' 
mind is also at work. He reasons that if he is fair- 
ly skillful he will not only get an answer to one 
charge of his double-barrelled question but to both, 
and both answers shall be dead against the witness. 
In order to effect this object he does not rally the 
witness and drive and goad him, so as to tempt the 
jury to believe he is simply bullying the man out of 
his wits, but proceeds quietly as though he were 
assisting him, breaks the difficult question in two, 
knowing well enough from the witness' reluctance 
what answer he will at last squeeze out of him. 

"Do you know, Mr. Hawk, that Wobbler did not 
take any of poor Thriftless' goods?" 

.Suppose Hawk says yes? the next question would 
probably have been How do you know it? and the 
next why should you know it after the full instruc- 
tions conveyed in the letter that has been read in 
Hawk's own handwriting? You can see there is 
something in Jones' hand which is kept well up, and 
it must be a good card or he would not be so confident 
in his play. Why should Hawk know that Wob- 
bler, had not carried out his instructions? and how? 

The how must be that Wobbler must have told 
him, and the why would have led to the exact fact 
which presently is proved. So the gentle student 
perceives as clearly as though he were cross exam- 
ining himself that Hawk is well bird-limed, that he 



32 ILLUSTRATIONS IN ADVOCACY 

quivers on the bough, and oscillates between a yes 
and a no, and casts about to see what intermediate 
equivocation will answer to his purpose. Then is 
he neatly pressed in the following manner: 

"Mr. Hawk, its a very simple question did you 
know it or not?" 

Hawk wants a little more time, so asks that the 
question may be repeated ; and whenever this takes 
place rest assured there is at least one mark scored 
against the witness in the jury-box. 

Question repeated, "Do you know that Wobbler 
did not seize the goods of Thriftless under the bill 
of sale?" 

"I know I never had one penny-piece for my bill 
of sale." 

Still no answer, but a clear indication of what is to 
con . e. 

"Answer me, Mr. Hawk." 

Mr. Hawk says there was no seizure. 

** How do you know?" 

That has fixed him. He cannot move. He dares 
not answer. But here Jones, for a purpose, leaves 
this part of the question and presses the second part 
in a new form. Have you heard that Wobbler 
never seized? 

Hawk wishes he could pulverize Jones, for this 
question looks ten times worse than the other. 

"I never got a farthing," exclaims Hawk in 
despair. 

"You must answer the question," says his own 
counsel. 



COVENANTS IN BILLS OF SALE. 3.3 

"I did hear he never seized," says poor Hawk, 
and now he is up to his very beak in difficulties. 

"Who told you?" asks Jones, with irritating 
perseverance. 

Well, who could have told him but Wobbler him- 
self-, so he is obliged to admit that Wobbler him- 
self told him. 

Now, mark what this leads to, seeing that he has 
never seen Wobbler since he gave instructions to 
seize. It leads to the fact that Wobbler must have 
written to Hawk about the matter, and, probably, 
after Hawk had, as is proved, written to himfoi 
an account of the sale. 

"Did he write to you?" 

"I suppose he did." 

"Have you got that letter?" 

"Oh, dear, no!" 

"You have had notice to produce it." 

"I dare say." 

Copy letter from Wobbler to Hawk of ten years ago 
produced. Objected to, of course; withdrawn: 
Jones doesn't care a farthing, but asks Hawk what 
it was that Wobbler told him in the letter. Press- 
es him hard on this point, and at last, when there 
is no escape in the wide world for this sagacious 
bird, he confesses that Wobbler told him the goods 
were of no value and would not pay expenses. 

Anybody would have thought, to see the placidity 
of Jones' face as he sat down, that Hawk was his 
dearest friend. 

Now, then, Hawk's feathers have to be smoothed 



34 ILLTJ8TKATIONS IN ADVOCACY. 

by re-examination, and a very pretty process it 
was. 

"Oh, dear no !" says, plaintively, this martyr- 
like being; "not one farthing had he ever had. He 
really did not know anything about a seizure by 
Wobbler, only what Wobbler had said in his letter, 
which, unfortunately ,he could not find. He shouldn't 
have seized, and then brought this action years after. 
Oh, dear, no! He did not ruin Thriftless, certainly 
not ; thinks Thriftless must have been consumed by 
spontaneous combustion; was for many years in 
practice, and although, was Thriftless' solicitor, was 
not aware at the time he took the bill of sale that 
Thriftless had been in liquidation, and it was a shame 
to suggest that the covenant about its being a sub- 
sisting debt was artfully inserted by him because he 
knew it was not a subsisting debt. Oh, dear, no ! 
nothing of the sort. Couldn't take advantage of 
Sparrow's ignorance in that way. Quite against his 
principles. Then as to this Wobbler; he had not 
heard of him for years insinuating that Wobbler 
was a rascal. 

At all this the jury smile sardonically. Clever 
re-examination, no doubt and they smile at the 
wonderful cleverness of the counsel, and the artful- 
ness of the patriarch. There was the bond, and al- 
though the greater part of the amount for which 
Hawk took the assignment of the bill of sale with 
the covenant was incurred in the preparation of the 
bill of sale by him, yet what could be clearer than 
the bond? Nothing, except, the admirable manner 



COVENANTS IN BILLS OF SALE. 35 

in which the case of the plaintiff was being con- 
ducted. 

"Oh, you lawyers I" was written on the face of 
every juryman. 

The case is getting interesting. The judge has 
long ago seen through it ; but we must wait for the 
evidence which has been foreshadowed by the cross- 
examination. 

Now, when the reader has well considered the 
points of the cross-examination, let him remember 
that at present all is suggestion, and if he had to go 
to the jury upon the case as it stands, he would have 
to insinuate three things. First, that Mr. Hawk 
had knowledge of the liquidation before he got the 
defendant to sign the covenant, that it was a subsis- 
tent debt. If that point be established, the plaintiff 
will not win. Secondly, that the defendant was not 
aware of the nature of the covenant he was induced 
to sign. I need say nothing further upon these 
points, because the whole arguments and inferences 
will flash like lightning before the mind of the in- 
telligent reader. Thirdly, and of greater force than 
the other two, there was the suggestion, amounting 
almost to certainty, that Wobbler did seize the goods 
of Thriftless and that he sold them. Whether he 
gave over the proceeds of the sale to the plaintiff 
or cheated him out of them, is of no consequence to 
the jury and not relevant to the inquiry. Those are 
the inferences if you do not call evidence, and even 
upon those inferences the verdict would probably 
be for the defendant. But having evidence of a 



36 ILLUSTRATIONS IN ADVOCACY. 

conclusive character, Jones' able junior calls first 
the defendant, who deposes to this effect: 

"Knew nothing of the nature of the covenant. 
The plaintiff knew as much as he did of the circum- 
stances of Thriftless" (the jury think a great deal 
more). So, in spite of the original strong presump- 
tion that Thriftless, signing the covenant with his 
eyes open, knew what he was about, the jury be- 
lieve he did not know the significance of the legal 
jargon contained in the covenant. They do not 
seem to think that a market-gardener is so well versed 
in the technicalities of legal documents as a shrewd 
lawyer who had been half-a-century in practice. 
The jury know that market-gardeners are not usually 
great lawyers. Raising cabbages does not require so 
much pettifogging technicality as raising points or 
sowing the minute seeds of a prolific lawsuit. Next, 
and to the great surprise of the plaintiff, poor 
Thriftless himself was called. 

And now I ask the reader's attention to some 
very important points in the conduct of a case, 
namely, those of examination-in-chief, cross-exam- 
ination and re-examination. 

Says poor Thriftless: "I was indebted to the 
defendant, who had been very kind to me. He had 
lent me money from time to time, and at last he 
would lend me no more without security, so I gave 
him a bill of sale. Afterwards I became bankrupt." 

"Did the plaintiff know of your bankruptcy pro- 
ceedings?'" 

"Of course he did." 



COVENANTS IN BILLS OF SALE. 37 

"Why, of course?" 

"Because I consulted him about them. 19 

Here the benevolent gentleman protests, by ges- 
ture and facial distortions, that this is the largest 
amount of perjury ever committed at one time. 

The witness and plaintiff had been neighbors. 
The plaintiff had been his legal adviser, and they 
used to meet and talk occasionally about Thriftless' 
affairs. Gruiaces, therefore, are no answer to such 
presumptions as arise from these facts. 

"He told me," says the witness, "what solicitor 
to go to about my bankrupty." 

"Oh, did he?" 

"Yes, certainly." 

Poor old patriarch What a liar he thought this 
witness. How a man could, &c., &c. 

The next piece of evidence was that not long after, 
when he had got nicely settled again, his liquidation 
proceedings being over, and he had collected a few 
sticks around him, in comes Wobbler with this very 
bill of sale, says he has come from the plaintiff; and 
produces a letter which was read to him, from the 
plaintiff himself , and seizes every stick he had got. 
There were carts worth 14, there was a consider- 
able quantity of plant which had cost 80 to set up 
and for which the money was borrowed of the de- 
fendant. There were tables and chairs, an eiffht- 

o 

day clock, a mangle, a grindstone, and, above all, 
a nice feather bed that he and his wife slept on. All 
these with other things were taken under the bill of 



38 ILLUSTRATIONS IN ADVOCACY. 

sale. Altogether, about 60 or 70 worth, even if 
they had been sold by auction. 

This was a surprising . revelation to the benevo- 
lent gentleman, because he had sworn he never had 
a penny; knew nothing about any seizure, and, in 
fact, alleged that it was the defendant who had 
seized the things. Mistakes of this kind will some- 
times occur; but the jury would have to judge of all 
these facts and of the presumptions therefrom aris- 
ing. They would surely think it strange for a man 
to sue for a breach of covenant, which covenant was 
that it was an existing debt, after the plaintiff had 
so far made it an existing debt by selling a man out 
of house and home upon it and taking his bed from 
under him. But perhaps the cross-examination will 
set matter.? right, as it sometimes does. 

"Now, sir, will you swear that it was not the de- 
fendant who seized the goods T ' 

"I will." 

"Did the defendant never seize?" 

"No, he never did." 

"Will you swear that?" 

"I will." 

"Did you not have an execution put in once. 

"Yes, twice." 

"And didn't the defendant produce the bill of sale 
and turn out the execution creditors?" 

"No; but that there man did the plaintiff. He 
produced 'un, and " 

"Well, didn't the defendant take possession?'' 

"In that there way he did." 



COVENANTS IN BILLS OF SALE. 39 

"Just answer me this. Did you ever see the 
plaintiff after Wobbler, as you say, seized." 

"I did." 

"When?" 

"Several years after." (The counsel sits down.) 

"Well," says Jones, in re-examination, "he asked 
me for more money and I says I couldn't help 
swearing, my lord I says, why you've stripped me 
naked. D'ye want to skin me as well?" 

Has the reader any doubt as to how the verdict 
would be after this ? 

The benevolent gentleman was suing on his bond. 
Come Portia, come Shylock ! It is not disallowable 
to refer to plays or historic characters by way of 
illustration. There is high authority for it. A 
striking parallel is always well received and gener- 
ally effective. What did it matter now that Wob- 
bler had cheated his employer? The bill was not 
given to cover Wobbler's delinquencies; it was 
only given to cover Thriftless' debt to the defend- 
ant, and as the plaintiff's agent had already received 
thrice its value, the jury returned a verdict against 
him. 

It is often difficult to form- a correct opinion of 
the merits of a case from seeing one side only. 
Even a bond may have no merits, and may be cross- 
examined out of court. Who can tell the config- 
uration of the invisible hemisphere of the moon? 

Caution and patience were the cardinal virtues, 
adjustment of facts the mechanical agent in this 
case. 



40 



CHAPTER IV. 

IN CASES OF RECEIVING STOLEN GOODS AND OF HOW 
TO CHALLENGE JURORS. 



My next case seems to contain instruction for a 
young and intelligent advocate, but I do not war- 
rant it. By the early morning post came a letter 
from a country town to Alfred Jones, Esq. It con- 
tained these touching words "Reg. on prosecution 
of Bowles versus Brown, Jones, Robinson and 
Smith. Please accept retainer in this case on 

behalf of Brown for the ensuing shire 

Sessions." 

"Humph!" said Alfred, "the worst case of the 
bunch, I've no doubt." 

Yes, Alfred, as a rule the hard-working man is 
retained where there is most work and most money, 
not otherwise. But the despondent counsel pock- 
eted his grievance and the retaining fee. It is best 
to take things, especially fees, as you find them. 



STOLEN GOODS, CHALLENGING JURORS. 

The next scene is the conference at an hotel on 
the morning of the trial. Alfred had not yet 
received his brief, and was meditatively smoking 
his morning cigar when the solicitor entered, appar- 
ently full of hope and in the best of spirits. As a 
rule, I have noticed that solicitors with the worst 
cases are in the best spirits. 

"Well," says Alfred, "What's all this about?" 

"Oh," answers the solicitor, "a little matter, sir. 
I don't think you'll have much trouble." 

"Going to plead guilty, is he?" 

"Well, we should hardly bring you down if he 
were going to plead guilty. I think you'll get him 
off. The facts are -these." 

"Never mind the facts. Tell me who's on the 
other side; that's the most important matter." 

"I hardly know," says the solicitor; "they are 
very anxious to get a conviction, and talk of bring- 
ing some one special." 

"Well, what are the facts? We may as well 
know something about them." 

"I'll tell you in a few words. It's not a long 
story, and I believe it's a trumped-up case." 

"By the police?" 

"Yes." 

"They generally trump up their cases pretty well, 
and upon a tolerably sure foundation of facts." 

"Well, sir, our man, Brown, is a large proprietor 
of vehicles, which he lets out on hire to all corn- 
ers." 

"To all comers," says Alfred, mentally; "there's 



42 ILLUSTRATIONS IN ADVOCACY. 

the point at once, put in the most off-hand manner;" 
but he says nothing audibly, only smiles. The 
shrewd solicitor reads his thoughts and says: 

"No, there's nothing in that, sir." 

"Very well; so on." 

"Well, this Brown keeps a yard " 

"And a good character, I presume?" 

"Well, he has a good character, and he hasn't, if 
you can make that out." 

"Perfectly. He has a good character, but dares 
not prove it." 

"That's exactly how it stands. There's nothing 
against him ; but the thing is this if we call wit- 
nesses to character, the other side may ask whether 
they are aware that the man has been tried before 
for a similar offence?" 

"And what might that offence be?" 

"Burglary, and receiving goods knowing them to 
have been stolen?" 

"Is that all?" 

"That's all. But he was aquitted of the previous 
charge, and I'm afraid to call witnesses." 

"I should think so," says Alfred, in a petulant 
tone, and knocking off the ashes of his cigar as 
though it were Brown's character. 

"Very good, sir," says the solicitor, making a 
note. "I thought you would advise that." 

"Now the facts," says Jones. 

"The facts are simply these. On the night of 
the 10th March Brown lets a horse and cart to two 
men, who go away with it, and in the morning 



STOLEN GOODS, CHALLENGING JURORS. 43 

about six o'clock Brown goes into his yard, and 
under the shed there stands the cart, with a dead 
pig in it, two sides of beef, and a sheep, with a 
ticket in his inside." 

'Sheep was dead, I suppose?" 

"Oh, yes; he was dressed, and the ticket was 
stuck into his kidneys. Well, seeing this, and 
not knowing where it came from, Brown thought it 
had better be sold, so he goes down to the market 
and offers the whole lot for sale at 6d. a-pound." 

"What was the market price?" 

"Well, I believe the market was rather full that 
morning, and meat was a little down." 

"What was it the day before?" 

"Well, I believe the day before it was a little up; 
eightpence halfpenny to ninepence." 

"And the day after?" 

"About the same as the day before." 

"Yes?" says Alfred, making a mental note. 

"Well, "continues the solicitor, who was beautifully 
imposing on his counsel, "he was bid by the butcher 
5fd. ; but Brown refused to take it. 'No,' said he, 
'I'm commissioned to sell it for 6d., and no less." 

Another mental note. 

" 'The fact is,' says Brown the prisoner, 'the 
meat has beten taken away from the sheriff's officer 
to avoid an execution.' ' 

"It would not have avoided an execution in the 
old days, for the man would cr -tainly have been 
hanged. When you say it was taken away to avoid 
an execution " 



44 ILLUSTRATIONS IN ADVOCACY. 

"I mean that an execution was expected, and " 

"Yes, yes ; that's a totally different thing. Pro- 
ceed." 

"Well, it appears that this Brown asked the 
butcher to go and have something to drink at a 
public-house." 

"Just one moment," interposes Alfred; "did 
Brown know this butcher?" 

"Oh, yes; he had known him for years.'-' 

Another mental note. 

"Well, they didn't have anything to drink, but 
Brown tells him the meat is up at his place, mean- 
ing his yard." 

"Yes?" 

"But before Brown gets home it turns out that a 
burglary had been committed at a butcher's some six 
miles off, and that this very meat was stolen ; and 
the ticket that was in the sheep had got the name of 
the man whose house had been broken into on it." 

"What a very extraordinary thing!" exclaims 
Alfred. 

"Yes; but that is not all." 

"I suppose not; but it's quite enough." 

"It appears that the two men who hired the cart 
the night before were well known to Brown, although 
lie couldn't swear that they were the me'n who had 
hired it." 

"Very curious ! Did he make an entry of letting 
the cart in any book? 1 suppose he keeps books?" 

"Oh, yes, there's an entry, fortunately." 

"But no name?" 



STOLEN GOODS, CHALLENGING JURORS. 45 

"No name, because he didn't know the men." 

Another mental note. 

"What's the next thing?" 

"The next thing is that two of the prisoners, 
Robinson and Smith, it appears, 'lodged in the same 
house ; and in Smith's room was found another sheep 
that had been stolen from the same man. That 
being so, it would have looked suspicious against 
them, only they don't appear to know anything 
about it. It appears that an old woman lives in this 
house, and is acquainted with this Robinson; in 
fact, is his mother-in-law, and while she was sitting 
up, with her back to the door, waiting for Robinson 
to come home, for it was getting pretty late, some- 
body, it appears she can't say who comes in 
without her seeing him, and drops the sheep in the 
middle of the floor !" 

"Bless my soul !" exclaims Alfred. "Didn't she 
see who it was?" 

"No; it appears she didn't turn round. That's 
all a mystery." 

"Not usual, is it, in these parts for people to go 
about dropping sheep in your rooms?" 

"No ; but you see she was alone, and a little hard 
of hearing." 

"Did Robinson come home that night?" 

"It appears he came in, and she never heard 
him." 

"It's an extraordinary story, certainly." 

"It is an extraordinary story, sir, when you come 
to hear the whole of it." 



46 ILLUSTRATIONS IN ADVOCACY. 

"Well!" 

"Well," says Jackson, "the next thing is this; 
the man whose house had been broken into, hearing 
where his meat was, goes up to Brown's house, and 
just as he gets there up comes Brown. Bowles, the 
prosecutor, says 'You've got some meat here belong- 
ing to me.' ' 

" 'It's up in the yard,' says Brown, 'in a shed." 

Another mental note. 

"Bowles goes up the yard, and just as he gets 
there he finds Smith and a man, who Bowles swears 
was Robinson, and the other prisoner, Jones, har- 
nessing the horse and putting him to." 

"Who was Jones?" 

"Jones was Brown's man, that's all." 

"Oh, ^'sall!" 

"That's all he was, sir; and I believe he's inno- 
cent as " 

"As Brown himself . Yes?" 

" 'Well,' says Bowles, 'that's my meat, and you 
don't take it away.' ' 

" 'Don't we,' says Smith. 'We'll show you.' And 
accordingly they jumped into the cart and away 
they drove, Bowles running after them and hanging 
on the tail-board. Now this is very important. 
They drove to a place where the roads diverge, and 
as they were going, they beat Bowles about the head 
and face with a great stick, and, I understand, 
wounded him severely. Well, they got away, and 
at last it appears that the man they swear was 
Robinson got away too, but Smith was met by a 



STOLEN GOODS, CHALLENGING JURORS. 47 

constable driving the cart, and was taken into cus- 
tody. There's no defence for him." 

"I hope he is not going to plead guilty." 

"Why, sir?" 

"They'll make him a witness for the Crown,that's 
all." 

"Oh, he won't plead guilty." 

"What next happened?" 

"What next happened is this. Up come the 
police and ask Brown what has become of the meat ; 
and then Brown tells them that the owner of the 
meat had come, and that the three men had gone 
away together." 

"Which was not quite true," said Alfred. 

"Well, Brown thought they had gone away 
together." 

"What ! when they were beating him over the 
head with a stick?" * 

* Well, Brown couldn't see that. He thought he 
was trying to get into the cart behind, as some 
people do at times; but the police swear that Brown 
pointed in the wrong direction, whereas he pointed 
in the right direction with his thumb and finger, 
like -this. He pointed up the road they had gone, 
although the road, as I said, branches off when you 
get a little way up. The police also say that Brown 
told them he hadn't let the cart, but he swears he 
did, and produced his book to prove it." 

Another mental note. 

"And then I suppose they were all taken into 
custody?" 



48 ILLUSTRATIONS IN ADVOCACY. 

"Yes." 

"Then it's a dead case. I never knew a more 
hopeless one. How can I do anything for Brown? 
It's impossible !" 

"You've got off many a one that has been quite 
as impossible as this?" 

"Not quite so impossible." 

"I haven't quite finished the brief," says Jackson, 
"I want to make a few observations " 

"Please don't You need not trouble about obser- 
vations; if a counsel wants observations he isn't 
worth having." 

This was a true remark; for nothing is more 
irritating than to wade through a series of observa- 
tions that are pertinent; except, perhaps the task of 
wading through a series that are not pertinent. If 
they are pertinent, they must necessarily occur to 
the most ordinary mind; if not pertinent, they are 
worse than useless, for they tend to confuse. 

Now the first thought that occurs to the young 
advocate on reading these facts is, that no art could 
obtain an acquittal. This was the view of the 
learned Jones, but he made this remark: "One 
never knows what may happen." The witnesses 
may waver in their evidence ; they may forget some- 
thing important; may try to make something that 
is important look more important still, or may add to 
their evidence. This should be carefully watched 
for. They may contradict themselves. The prose- 
cution may be too eager, and overshoot their mark. 
They may be slovenly, and omit some important 



STOLEN GOODS, CHALLENGING JURORS. 49 

particle of evidence. They may call witnesses not 
on the depositions, whose evidence has not therefore 
been previously sifted,or rather shaken together by an 
unskillful cross-examination before the magistrate. 
Look well for this ; and if a witness comes up who 
has not been cross-examined, he will be altogether 
unprepared for your questions, and probably play 
into your hands, if you know how to examine him. 
In this case, it will be abundantly manifest that to 
call a witness without previous knowledge of all he 
is about to say, or may be made to say in cross- 
examination, is one of the most dangerous errors an 
advocate can commit, and may lead not only to a 
gross perversion of justice, but to some unpleasant 
observations upon the party who calls him. 

The case looks desperate enough for the defending 
counsel; but to one with a moderately clear in- 
sight into human nature it is not hopeless. Mr. 
Alfred Jones had something of this insight, as was 
manifest when he took his seat at the Bar and 
glanced at the jury. He -had a notion that juries if 
they do not get packed, require at times a good deal 
of unpacking. And, without desiring to cast the 
faintest glimmer of a reflection on the officials of 
our Courts, who do their work in the most impartial 
manner, I would just observe, that whenever there 
is an important case to be tried, it's just as well to 
look every juryman in the face, and see if you can 
discover a prejudice either against the prisoner, his 
trade or calling. You will ascertain also whether 



50 ILLUSTRATIONS IN ADVOCACY. 

there is any appearance of partiality for the prose- 
cutor. 

I know that a good many reader? will wondei 
how you can tell this before the prosecutor puts in 
an appearance. My dear sir, do look at that fore- 
man: can you not see a gleam of triumph in his 
face? He knows what case he is going to try. 
He has read all about it in the newspapers. He has 
condemned the man before ever the case is opened. 
Have him out of the box. I saw Jones look, and 
he challenged him without a moment's hesitation 
What a stir there was ! How the other jurymen 
stared with amazement ! How they wondered ! Tho 
next man had a piece of blue ribbon in his coat. 
Now, I very much admire the principles of blue 
ribbonism, no matter of what nature soever; but it 
sometimes bespeaks an excess of rigid virtue, not at 
all conducive to the interests of Justice. The pris- 
oner at the Bar is a man who drinks, and even 
though only an occasional glass, he will be set down 
in the opinion of some teetotallers (I don't say all) 
as capable of committing any of that terrible cata- 
logue of crimes which one has been taught to believe 
was the fearful failing of the man who "has no 
music in his soul." The blue-ribbon man must 
come out of the box in this case, and accordingly is 
challenged. So much virtue is not sufficiently im- 
partial for the administration of justice. 

The jury again look wonderingly at one another. 
Whose turn will come next? Two jurors are duly 
sworn, and then another challenge is given. A man 



STOLEN GOODS, CHALLENGING JTJUORS. 51 

with a very rigid face and long straight hair he is ; 
looks as if a trial were merely a matter of form, 
and not an enquiry. His mouth could never smile, 
it is so extremely tight ; and he has, as you per- 
ceive, an eager desire to grasp the Testament and 
be sworn. Just as he takes the book 

"Challenge!" says Jones, and the severe man 
looks like a tiger disappointed of his prey. Cha- 
grined and crest-fallen, he leaves the jury box. 
The next is a smiling man; a ruddy farmer, who 
means to protect property against all comers. His 
smile informs you that he can see through a brick 
wall, which means any learned counsel, and find a 
"Werdick in spite o' these' ere counsellors, whose 
gift o' the gab aint to take in sich as he.*' He'll 
not see through this brick wall, with all his keen- 
ness of vision, and doesn't understand why he's 
challenged, any more than the tight-faced man, or 
the triumphant-faced man. The blue-ribbon man 
has an inkling as to why he was challenged, but puts 
it on a teetotally wrong ground. He thinks it was 
the blue-ribbon. So it was; but only as indicating 
an excess of virtue not commensurate with the 
human understanding. 

Three more were sworn, and then came a moment- 
ary difficulty in the mind of the counsel. What was 
the meaning of those pleading eyes ? They said, as 
plainly as eyes can speak, "Surely, Mr. Jones, you 
are not going to turn I out ; I swear on my bible 
oath, I will do justice to the best of my ability." 
And as his ability, judging from the view, seemed 



52 ILLUSTRATIONS IN ADVOCACY. 

considerable, he was allowed to remain. But what 
about the next, a sullen-looking man, who never 
raised his eyes, but seemed waiting for condemna- 
tion. You artful one, James Rodger, you want to 
slip by the scrutinizing glance of the prisoner's 
counsel. Your face blushes with conscious deter- 
mination that no prisoner shall escape, if your "So 
help me God" can help it; so you shall not "well 
and truly try," nor shall you try this case at all, for 
you are challenged. Out upon thee I 

The rest are sworn, and the prisoners given in 
charge. 

The case is opened clearly and well; dry, damning 
facts, without argument, as becomes counsel for the 
prosecution, are laid before the jury. All that 
mortal man can do for the defence in such a case is 
to watch, to elicit some little point, if possible, in 
cross-examination, "to go to the jury upon;" and 
to take up such points as there are in the prisoner's 
favor. And this is how it was done. 

First witness proves the breaking in and stealing. 

Time not certain, hence it was triable at Quarter 
Sessions. If it had taken place at a minute before 
nine it is triable at Sessions, if a minute after it 
must be at the Assizes. I mention this to point out 
the legal niceties and pettifogging wisdom of our 
mode of legal procedure. 

No cross-examination. 

Why ? asks the reader. 

My answer is, why? If the reader can think of a 
reason beyond that of getting out something which 



STOLEN GOODS, CHALLENGING JURORS. 53 

may damage the prisoners, I should be glad if he 
will write to my publishers. If he cannot he has 
his answer to the question^ 

The cross-examination, indeed, was the shortest 
that could be administered, and was simply for the 
purpose of establishing the following points, and 
impressing them on the minds of the jury. 

First That the ticket in the sheep contained the 
name and address of the owner. 

Second That the butcher in the market to whom 
Brown offered the meat was well known to him and 
was a respectable man. 

Third That the said respectable butcher had often 
had dealings with Brown in his capacity of letting 
out vehicles. 

No question of character, you see, but indirect 
suggestions leading to inferences. The prisoner 
knew a respectable tradesman who was probably 
known to some of the jury; a kind of reflected 
moonshine character, no doubt, and- very faint; 
something like the dark orb in the arc of the new 
moon, but still visible. I might say a twilight 
character, indicative of a rising splendor which 
never appeared. 

Fourth It was in consequence of Brown's going 
to this respectable tradesman that the police discov- 
ered where the stolen property had been deposited. 

The question eliciting this fact, I observed,was put 
to the detective in the following words: 

"It was from information communicated to you 
by the respectable butcher, and which had been 



54 ILLUSTRATIONS IN ADVOCACY. 

given by Brown, that you discovered where the 
meat was?" 

"That is quite right, sir," says the very civil 
detective, and he was not troubled with any further 
questions. 

It looked, therefore, as if there had been no con- 
cealment, at all events, on the part of .Brown, always 
a good point to make in a charge of receiving. 

There was, as before stated, no defence for Smith, 
but Jones and Robinson were admirably defended by 
another learned counsel, whose assistance to Alfred 
was by no means unimportant. He knew that 
Brown's defence would be endangered by any un- 
skillful question, and that his own clients could not 
possibly be benefited by it. So he put no unskillful ' 
question, but played his cards as though he not 
only knew his partner's hand but his play too. 

I do not pause to summarize the case, or to en- 
quire how it would have been presented to the jury 
if the evidence had stopped at this point, and for 
this reason, that from some strange cause or other, 
after all the witnesses who had abundantly proved 
the case before the magistrates had been heard, the 
prosecution thought it advisable to call further evi- 
dence, which was as follows: 

A detective sergeant swore that he was present 
when Brown was apprehended. That he was ap- 
prehended by a German detective named Von Bus- 
ter. That he heard this Von Buster say, "Ha ! ha ! 
Chemmy (meaning Jemmy), we are cooart you at 
larst I sed we shood I" To which the prisoner re- 



STOLEN GOODS, CHALLENGING JURORS. 55 

plied "Well Mr. Buster, ifs all for money; you know 
it's a paying gatne!" 

Now this, if true, was an awkward circumstance, 
and, coupled with the other awkward circumstances 
of the case, would be about as complete a coil as 
ever spider wove around the body of a struggling 

fly. 

But let the student mark for his amusement, not 
for his instruction, the manner in which the counsel 
deals with this; because, if this evidence should 
break down Brown undoubtedly will be acquitted. 
The reason is obvious, but had better be stated. 
The prosecution show that they are doubtful of the 
strength of their chain although every link of it 
was strong enough to hold the prisoner. Not being 
quite certain of their handiwork they supplement it 
with doubtful evidence, and attaching that to the 
chain in a clumsy and unscientific manner, if by any 
chance it.gives way the prisoner necessarily escapes. 
Let us see how it holds. 

Asks the counsel: "Were you before the magis- 
trate?" 

"No," says the detective with sweet detective 
innocence. 

"I suppose you think this evidence important?" 

"Oh yes, sir, certainly." 

"Was Von Buster before the magistrate?" 

"He were not, sir." 

"Is he here?" 

"No sir." 

"What brought you here':' 



56 ILLUSTRATIONS IN ADVOCACY. 

"A speener." 

This was detective wit, but it was not clever, in- 
asmuch as the police do not generally attend in 
prosecutions on subpoenas. If their evidence is 
material, it is their duty to give it without subpoena 
or extra pay. So the witty answer was in favor of 
the prisoner's acquittal. Wit sometimes is more 
than amusing, it may be useful. 

"Did you make a note of the conversation which 
you heard?" 

"No sir." 

"Why not?" 

"I don't know." 

"You thought it important?" 

"Yes." 

"Did you not think it so important that it 
amounted to a confession of guilt ?' ' 

"I did." 

The counsel does not apparently wish to argue the 
matter with the constable, because, having obtained 
all he wants as facts, he wants no policeman's rea- 
sons for the mere purpose of weakening them. But 
there are still one or two things he would like to 
throw some light on, so that the jury might view 
this evidence from his point of view and not from 
the policeman's. How came the detective to give 
evidence at all? That is the important point, and 
the counsel knows it to be a safe one, after the 
witty answer about the subpoena, so he asks: 

"When did you first make this statement to any- 
one?" 



STOLEN GOODS, CHALLENGING JURORS. 57 

Most awkward, because it is clear he never gave 
it to the inspector on duty, otherwise he would have 
had to give it before the magistrates. Clear, he 
never gave it to the solicitor for the prosecution, for 
the counsel opened as much. Then when did he 
first make the statement^ 

"It was as this," says the detective: "I were in 
the 'all here in another case yesterday and meets 
the clerk to the solicitor for the prosecution, and he 
asked me if I knowed this 'ere Brown, and then I 
up and told him the same as I've told you." 

One more question. "Did Von Buster know that 
you had heard this confession?" 

"He did, sir." 

"You may stand down." 

There is nothing to be done by re-examining this 
witness, because he is in so many pieces that he is 
like Humpty-Dumpty after the catastrophe. So he 
stands down. It is not attempted to set him up 
again. 

It is clear that Brown's counsel will commence his 
speech with this detective and the absent Von Bus- 
ter, because, in breaking down this man's evidence, 
he will show the weakness of the other parts of the 
case. So he gives the jury to understand that, 
although Von Buster's mode of proceeding with a 
prisoner might do for Germany or France, it was 
not quite in accordance with an Englishman's notion 
of fair play, to which proposition the patriotic jury 
assented in the most unequivocal manner. They 
clearly entertained strong prejudices against so 



58 ILLUSTRATIONS IN ADVOCACY/ 

un-English a mode of procedure. And, when it 
was pointed out to them, the fact was as plain as 
a hayrick, that if Brown had confessed his guilt to 
Von Buster, nothing would have prevented Von 
Buster from giving it in evidence before the 
magistrate. How could this look otherwise than 
suspicious against the prosecution? 

Why was not Von Buster or the sergeant before 
the magistrate? And why was not Von Buster 
here? Why was no report of such a remarkable 
circumstance made? And why was there not so 
much as a memorandum of it in the detective's 
pocket-book? All the other evidence was weak 
compared to this, and weak it must have appeared 
to the prosecution, to have been obliged to supple- 
ment it at the last moment. 

Well might the jury shake their patriotic heads 
in token of disapproval of this foreign mode of 
proceeding. It looked to them like a concocted 
story altogether. 

So Von Buster and the detectives are well belabored 
with good sound invective and honest indignation, 
until the jury's indignation is fairly excited and in 
flames against the prosecution. This makes a good 
clear opening for the arguments that must be used 
to break down the rest of the evidence if that can 
be accomplished. Now come the improbabilities. 
First, the improbability that Brown knew the meat 
had been stolen ; for, was there not the ticket on the 
sheep with the name of the owner on it? That 
would surely have been destroyed if the man had 



STOLEN GOODS, CHALLENGING JUiiORS. 59 

had any guilty knowledge. Next, it was unlikely 
that Brown, if he had known the meat had been 
stolen, would go to the open market to sell it, and 
to a respectable man to whom he was well known. 
So far as the price was concerned, it was disposed 
of by the fact that the sale was forced. It had to 
be sold because, as he supposed, it had been taken 
away to avoid being pounced upon by the sheriff's 
officer. 

The next point was that, although tb.e respect- 
able butcher had offered to take it at a farthing 
under the price at which it was offered, Brown 
would not let it go, but declared he was not to take 
less than six-pence a-pound ; whereas, if he had 
known it had been stolen he would have been glad 
to take anything in order to get rid of it as soon as 
possible and avoid discovery. 

That was a good telling point; it went straight to 
the jury, and seemed to hit the foreman on the 
nose, for he rubbed it with his forefinger and stared 
with intelligent wonder. It never struck, him so 
before. Then he looked round at his fellow jury- 
men and passed the blow on. 

Next came the point that, in reality, it was Brown 
who had given such information as actually led to 
the discovery of the meat. I say "such," 
advisedly, leaving the jury to take it for what 
it was worth they would put their own price upon 
it. 

Another point, not immaterial, was that Brown 
had actually produced the book in which was a note 



60 ILLUSTRATIONS IN ADVOCACY. 

of the letting out of the trap to the two men who 
committed the robbery. It is true there were no 
names entered, but as the learned counsel could not 
help that, he did not refer to it. The speech was 
concluded with a good, vigorous attack on the mode 
in which the prosecution had endeavored, at the last 
moment, to bolster up their case; and, with a scath- 
ing eulogy on the continental artfulness and cun- 
ning of the absent Von Buster, the counsel resumed 
his seat. 

Then, with adroit and well-considered arguments, 
the learned counsel for Jones followed. Wherever 
Brown's counsel had delivered a blow, Jones gave a 
well-directed kick and sent Von Buster and his ser- 
geant colleague reeling. He was a vigorous and 
courageous ally, and no doubt Brown's acquittal was 
due as much to his timely support as to his own 
counsel's skill. He was Blucher at Waterloo. 

Brown declared he left the court without a stain 
on his character, which was true. Suspicion on 
suspicion, I believe, is false heraldry. 



61 



CHAPTER V. 



I 

IN ACTIONS AGAINST RAILWAY COMPANIES FOR NEGLI- 
GENCE. 



An important class of cases at Nisi Prius is the 
action against railway, street railway and omnibus 
companies for injuries caused by negligence. In 
general, at starting, every presumption is against 
the company and in favor of the plaintiff. The 
sympathy of the jury is on the side of the injured ; 
negligence is almost assumed, and the making com- 
pensation appears to be a matter of simple justice 
and calculation. Apart from negligence at all, 
companies are looked upon as a kind of public 
exchequer, into which juries may thrust their hands 
and take out whatever they can lay hold of for the 
benefit of any claimant who can lay anything like 
a foundation for his demands: the foundation often 
being the injury, apart from any negligence what- 
ever, and as often the negligence apart from any 



62 ILLUSTRATIONS IN ADVOCACY. 

proof that it occasioned the injury. As a rule, 
companies well understand their position, and know 
that the chances, if not the facts, are against them. 
The best evidence they can adduce is generally the 
testimony of interested persons, and more often 
than not, of those persons who have the most 
direct interest in shielding themselves from blame. 
The principal aim which companies have in resist- 
ing claims of this kind is a mitigation of damages, 
and with this main object in view the majority of 
defences are conducted. The advocate, therefore, 
who is most skilled in cutting down damages is the 
best suited to the purposes of the company. Be is 
a destructive agent rather than a builder up of unsub- 
stantial theories. But let it not therefore, be sup- 
posed that a real defence upon the merits is of lit- 
tle moment. It is of the very highest importance, 
and as it is generally looked upon with considerable 
suspicion and prejudice, is one of the most difficult 
to conduct. 

I might give many examples from sensation cases 
which would be more interesting than the common- 
place one I am about to present, but I doubt if any 
one of them Avould so thoroughly answer my pur- 
pose. We do not want dazzling coruscations or 
models of perfection. Startling surprises are not 
the object of these illustrations. The simpler the 
facts and the more common-place the line taken the 
more telling the incidents are likely to be. 

Two years before the present trial, the plaintiff, 
a working man, was traveling by the railway from 



ACTIONS FOR NEGLIGENCE. 63 

Wapping to Whitechapel. His case was simply 
this, that, before he had time to alight, the train 
started and jolted him off the step of the carriage 
on to the platform and injured his knee, for which 
injury he brought his action in the following year. 
The result of the trial was no result at all. The 
jury could not make up their minds as to whether 
the company was liable or not. Undecided as to 
whether negligence on the part of the company or 
negligence on the part of the plaintiff, or both; but, 
if both, as to whether the company could still have 
avoided the accident by exercise of reasonable care. 
The twelve special heads in mystified chaos accord- 
ingly. Some months after the case was tried again 
with the same result, namely, twelve special heads 
in mystified chaos. 

To illuminate this utter darkness twelve more 
special heads were brought together in the jury- 
box, and the cause was once more tried. As I 
never flatter mortal man I do not wish to be sup- 
posed to say anything of a complimentary nature 
to the learned judge; but, in sober truth, I affirm 
that the manner in which his lordship kept the 
points, of this case clearly to the front throughout 
tin- long and conflicting series of witnesses speaks 
well for the clearness and inflexible justice with 
which the trial was conducted. 

I wish to impress on the reader that in the open- 
ing several microscopical points were made, which 
turned out to be no points, even under the strong- 
est forensic lens. It was through no fault of the 



64 ILLUSTRATIONS IN ADVOCACY. 

learned counsel, but in consequence of the inad- 
vertence of those who instructed his solicitors, 
that these imaginary points were beyond human 
vision. 

First of all, it was said the trains were "always 
an hour late." If this had been true, it would no 
more have accounted for the accident than it would 
for the motions of the heavenly bodies. If it was 
untrue, it threw discredit on the alleged cause of it, 
and so was in favor of the defendants. A false 
point always counts one for the other side. It was 
shown to be untrue; Having subsequently been 
corrected by the opposing counsel, it was opened 
that the train was forty minutes late. This point, 
therefore, twenty minutes .smaller than the other. 

Secondly It was opened that the train made up 
three minutes between Whitechapel and Liverpool 
Street. This also turned out to be a false point, or 
no point, for two reasons. First, the train only 
travelled a mile and a quarter in Jive minutes, not a 
pace to indicate any extra speed or eagerness to 
make up time; and, secondly, a margin of some- 
thing like four minutes was allowed in timing the 
arrivals of trains in consequence of their being 
obliged at times to wait outside the terminus before 
they could enter. But there being no obstacle on 
this occasion to the train running in instead of wait- 
ing outside, the three minutes were accounted for, 
not made up by accelerated speed, but by not being 
delayed outside the station. Thus two false points 
were made and disposed of, and the probability to 



ACTIONS FOR NEGLIGENCE. 65 

which they gave a possible existence was crushed 
before it had a breath of life. Thirdly the plaint 
iff would swear, said his counsel, that he went to 
work seventeen weeks after the accident, but for 
eight weeks could only earn twenty-two shillings a 
week instead of thirty-five. A false point, truly, 
because the man had sworn on two previous trials 
that when he went to work, after the seventeen 
weeks, he was as well as ever, and earned the same 
money as before. This went very directly and for- 
cibly to the man's credit in m)ss-examination, and 
no doubt flashed one gleam inro the utter darkness. 
I will now take the points of the material evidence 
in chief, and alongside of them show the cross-ex- 
amination, leaving the reader to judge of their 
value. 

The plaintiff ceased work about half-past three 
and waited for a man who left his work between 
four and five. He lived near Shoreditch Station. 
He was to meet his wife at Whitechapel, and go 
shopping with her. He then described the accident, 
as opened by his counsel in accordance with his in- 
structions. His cross-examination showed : 

First That he had been drinking that afternoon 
with some companions, and that, although he him- 
self remained as sober as a judge, one of his com- 
panions got drunk as a lord, but did not leave him. 
From this fact, perhaps, the twelve special heads 
can gather that the contradictory evidence of the 
witnesses who will be called for the defendants, and 
who had not been drunk, will be at least as trust- 



66 ILLUSTKATIONS IN ADVOCACY. 

worthy as to clearness of observation of what took 
place on that night as that of the plaintiff and his 
* drunken witness. 

Secondly the plaintiff, who was to meet his wife 
at Whitechapel, took his ticket at increased cost of 
fare for Shoreditch, the station beyond. This 
showed either reckless waste of pence, or that he 
forgot he was to alight at Whitechapel to meet his 
wife ; or that the story of the appointment to meet 
his wife was a concocted one, invented to account 
for his alighting from Whitechapel when he ought 
to have quietly remamed in the carriage. 

Thirdly his wife did not go to Whitechapel to 
keep her appointment. 

Fourthly His object, as he stated, in meeting his 
wife at Whitechapel, was to buy meat and carry it 
to Shoreditch, whereas he could buy it close at home 
for the same price and of the same quality. So 
there was no accounting for his getting out at 
Whitechapel at all, and the theory of the appoint- 
ment with his wife was absurd when neither the 
time nor the place of meeting was agreed upon, and 
neither went to keep the appointment. The story 
had nothing to do with the cause of the accident or 
the merits of the plaintiff's case. But why was a use- 
less story told? It was told to account for a fact 
which the plaintiff did not know how to account 
for in any other way ; and you may always rely 
upon it that when a plaintiff or defendant gives a 
false reason for any line of conduct, he is afraid of 
the true reason damaging his case. In this instance, 



ACTIONS FOR NEGLIGENCE. 67 

it could only damage his case by indicating reck- 
lessness of conduct in alighting, which recklessness 
would seem to be the cause of the accident. 

Fifthly The plaintiff did not enquire for his wife 
at Whitechapel, but forgot all about her. He 
admitted also that he might have been under the 
influence of drink on the night of the accident. 
Before he answered the question which was put to 
him at the solicitor's office as to whether he was 
sober, he went to the hospital, saw the nurse who 
had attended him on the niyht of the accident and 
asked her if he was sober, to which she replied that 
he was under the influence of drink. 

Then asked the learned judge 

"Why did you not give that answer before?" 

"I did, my lord," said the plaintiff. 

"No answered his lordship; "you wanted to 
attribute your condition to excitement, when it was 
not excitement." 

False points, therefore, made by counsel; false 
testimony given by plaintiff, and false reasons 
adduced for conduct which required no reasons to 
be given at all. A true story is generally simple 
enough ; a false one gives the lie to surrounding cir- 
cumstances, and has to be accounted for by false 
reasoning and imaginary causes, and usually gets 
blocked by real facts which it cannot displace. 
Then this false story is so awkward when it has to 
be supported by more than one witness. The com- 
panion who was drunk swore he wasn't, and yet he 
was admitted to be drunk by the counsel for the 



68 ILLUSTRATIONS IN ADVOCACY. 

plaintiff. Another witness also declared he was not 
drunk. Plaintiff himself swore he was. Again, the 
plaintiff said there was not time to get out, that the 
train started as soon as it stopped, and yet that two 
persons had alighted from the same compartment, 
as well as an old woman, who took a long time to get 
out, before he attempted to do so. 

Another important circumstance was, that he 
had previously sworn he took his ticket for White- 
chapel (this was to fit in with the theory of meet- 
ing his wife), and now he had to swear he took it to 
Shoreditch. Here there was a fact capable of 
proof attempted to be displaced in order to fit in an 
imaginary fact. How, then, does the matter stand 
after cross-examination, according to the learned 
counsel for the defendant Company? 

Train not an hour late, as opened; time not made 
up in consequence of being late ; no time made up 
at all ; train not traveling at more reckless speed 
than twelve miles an hour. There was time for 
persons to get out. Plaintiff had not to meet hi s 
wife at Whitechapel, or he would not have booked 
to a more distant station. Neither time nor place 
mentioned where he was to meet her. He did not 
inquire for her at Whitechapel. She did not go to 
Whitechapel. (Upon this point I may also state the 
wife gave false and absurd reasons for not going.) 
He had been drinking. His companion was drunk. 

He had given false statements as to his earnings, 
and as to the time of his being incapacitated to do 
work full time. 



ACTIONS FOR NEGLIGENCE. 69 

But, notwithstanding all this, how did the acci- 
dent happen? He might have been drunk, but 
still the Company had no right to injure him. He 
might be a false witness, but yet he had met with 
an accident, and if it arose from the Company's 
negligence he was entitled to compensation. 

In a defence of this kind you have not to show 
how the accident happened. That is for the plaint- 
tiff. You have only to prove there was no negli- 
gence on the part of the Company. If you can 
show negligence in the plaintiff, well ; and in sug- 
gesting this negligence as the probable cause of the 
accident, all the points made were good, because 
they gave rise to probabilities; nevertheless these, 
although good, were not conclusive. There was 
the fact of the accident and the probable cause of it 
given by the plaintiff ', who, although untrustworthy 
in many particulars, was not utterly unbelievable 
as to this. Suggestions, therefore, on the part of 
the Company will not wipe out this direct evidence ; 
but a good suggestion as to the probable cause of 
the accident was made, based upon an answer to a 
question in cross-examination. The plaintiff stated 
that he knew some trains did not proceed further 
than Whitechapel, and the suggestion was that he 
hurriedly jumped out for the purpose of catching 
another train, and, in so doing, fell. 

I do not think there were any facts up to that 
time on which the suggestion could be based, 
beyond the plaintiff's knowledge that passengers 
sometimes have to change; the suggestion, there- 



70 ILLUSTRATIONS IN ADVOCACY. 

fore, was not evidence, and did not induce the jury 
to stop the case, so witnesses were called, who 
proved that the plaintiff and his companions were 
not sober in their language and conduct while in the 
carriage ; and that, after the accident, the plaintiff 
had stated that he thought they had to change car- 
riages. I need not say there was abundant evi- 
dence to prove a total absence of negligence on the 
part of the defendants ; but it took a great many 
witnesses and a long time to do it, ,and it took the 
jury a couple of hours to consider their verdict. At 
last, however, the thrice-told tale was brought to a 
conclusion by a finding in favor of the defendant 
Company. 

Juries, truly, are an incomprehensible body. I 
do not think the direct evidence on the part of the 
Company would have been sufficient to lead them to 
the conclusion they arrived at, because it simply 
went to show that the train stopped long enough to 
allow passengers to alight ; that the doors were shut 
properly, and that the guards did their duty. All 
this would have looked like mere evidence of course, 
on the part of the Company, and was, as usual, of 
such a character that, if accurate, there could have 
been no accident at all. When a man has lost a 
leg or an arm it is useless to attempt to prove that 
it was the result of a miracle. Miracles are so rare 
now-a-days that they are never believed in a Court 
of Justice. Over-swearing is worse than not swear- 
ing up to the mark. What you have to look for in 
the plaintiff's case are false points, false arguments, 



ACTIONS FOR NEGLIGENCE. 71 

absurd reasons for reasonable conduct, exaggera- 
tions, perversions of simple facts, unnatural theo- 
ries, improbable motives and contradictions. All 
these were found in abundance in this case, and the 
wonder was that the jury should have taken any 
time to consider their verdict. It only proves how 
difficult it is for the most experienced counsel to 
overcome the prejudice and benevolence that at 
times find their way into the jury-box. 



CHAPTER VI. 



IN ACTIONS AGAINST STREET RAILWAY COMPANIES. 



MY next illustration is an action against a street 
railway company for damages in consequence of the 
defendants' negligence. It differs greatly in the 
mode in which the defendants conducted their case 
from the last, although the circumstances attending 
the accident were similar, and the alleged negli- 
gence precisely of the same Character-. 

The reader will smile when I say that in conduct- 
ing a defence much will depend upon the line you 
take. 

"Of course it will," he exclaims, contempt- 
uously ; but I want to point out, my dear and impet- 
uous friend, how the true and the false lines run 
so nearly parallel that it requires careful study and 
knowledge of human nature to distinguish them. 
I am dealing in these cases for the most part with 
leaders, not with inexperienced juniors; and, if 



AGAINST STREET RAILWAY COMPANIES. 73 

leaders with all their practice, fail sometimes to 
discern the left hand from the right, it shows how 
carefully advocacy should be studied, and how use- 
ful models may become, whether they are models of 
beauty or deformity. Have patience with me, 
therefore, when I say that much depends upon the 
line you take. 

In the present case a middle-aged lady, whose 
husband was a builder, and carried on his business 
at Scarborough, was on a visit in London. Going 
out one morning to "do a little shopping" she hailed 
a street-car, which was just in the act of starting. 
The conductor stopped the car, and the lady, a 
portly person, was just in the act of getting on to 
the platform when on it started, and as the lady had 
one foot on the step and the other on the ground, 
her footing was somewhat unstable, and down she 
went on her back with considerable violence. She 
was picked up and taken to a doctor, where she 
fainted, was taken to her lodgings, and remained 
there several weeks under medical treatment. She 
then returned to her home, and, after some time, 
becoming worse, called in a local doctor. That 
gentleman at once perceived that a rib was fractured, 
and immediately reported the fact to the manager of 
the Company, who some time after communicated 
the report to the medical adviser. That gentleman, 
however, pooh-poohed the idea of a broken rib with- 
out further examination, although the local doctor's 
letter had stated that if the Company's doctor would 
come down he could not only ascertain from the 



74 ILLUSTRATIONS IN ADVOCACY. 

ordinary examination that the rib was fractured, but 
could distinctly hear that it was broken when the 
patient breathed. But the Company's doctor, satis- 
fied with his previous examination, was prepared 
without further enquiry, to swear that if a rib had 
been broken he must have discovered it. One or two 
other doctors would also give evidence that it was 
impossible for a rib to be broken, and not discovered on 
examination. The reader will bear this in- mind, 
for it will become important on the motion for a new 
trial. 

One further statement there was in the local medi- 
cal gentleman's letter to this effect, that "he re- 
ported the fact of the broken rib to the Company 
in order that they might send some one at once, so 
that it could not be alleged hereafter that it was a 
hole and corner examination." 

What a straw this was for counsel to catch at will 
be seen in the course of the trial. That counsel 
should clutch at it I am not surprised, because a 
straw sometimes in a Court of Justice, if adroitly 
exhibited, will look as substantial as a floating spar; 
but how any human being could believe it to be a 
lifeboat passes the comprehension of my unimagina- 
tive mind. 

The questipn in the case was simple enough Did 
the car start before the plaintiff had time to enter '9 

The cross-examination of the plaintiff and her 
witnesses will be amusing. It was clever but un- 
scruplous ; ingenious but unmerciful. It was clearly 
not based on any profound knowledge of human 



AGAINST STREET RAILWAY COMPANIES. 75 

nature, for the human nature in the jury-box resisted 
and resented it. 

"Did you not once keep a greengrocer's shop?" 
the plaintiff is asked. 

The question certainly seems a long way from the 
issue; but, I suppose, being admissible, it went to 
show that a greengrocer's rib is not quite so valu- 
able as the rib of a builder's wife. It means some- 
thing you may be sure. 

The answer was "Never." 

The foundation on which this question was based 
was this ; There had at one time been a front-room 
occupied as a greengrocer's shop on the premises 
where the plaintiff resided. But even if the plaint- 
iff did keep a greengrocer's shop, it had little to do 
with the question as to whether there had been neg- 
ligence on the part of the Company in starting the 
car before the plaintiff, greengrocer or no green- 
grocer, had time to get in it. Nor do I perceive 
how keeping a greengrocer's shop went to the credit 
of the witness. 

The next question was whether her husband had 
mortgaged his houses? 

Answer: "I don't know." 

"But you keep the books?" 

"I keep the books." 

"And your husband has claimed damages for the 
lo.-s of your services in keeping the books? 

"I don't know." 

"What do you do?" 

"i let his houses and keep his rent-books." 



76 ILLUSTRATIONS IN ADVOCACY. 

"Has he got any houses?" 

"Yes." 

"Hus he not applied for donations to a friendly 
society because he was hard up? 

"I don't know." 

"Will you swear that?" 

"Will I swear what?" 

Counsel hardly knew how to answer he was being 
cross-examined now. 

So, not making anything of the greengrocer's 
shop, and nothing of the mortgages, the learned 
counsel "tackled" her upon the accident, and strove 
to make out that she ran a considerable distance 
after the car, and endeavored to enter it while in 
motion; a futile endeavor, certainly, seeing that this 
middle-aged lady had hailed the car while she was 
about a hundred yards behind, and would have had 
to travel at the rate of about twenty miles an hour 
for an hour and-a-quarter before ever she could 
overtake it. This was a glaring improbability set 
up by the defendant Company. 

The jury wagged their heads and smiled. 

No doubt it is possible in a circus for a clever 
equestrian to vault on to the back of a horse while 
the animal is going at full speed ; but it is different 
in the case of a street-car, and a lady cannot vault 
into it while it is going at a velocity of eight or nine 
miles an hour, especially if she is a couple of hundred 
yards behind, and only progressing at the rate of 
two miles an hour. 

So the cross-examination, admirable as it was, 



AGAINST STREET RAILWAY COMPANIES. 77 

failed. And let this be remembered by aspiring 
students ; when you fail in cross-examination you 
are in a worse condition than you were before you 
began. There was a similar cross-examination ad- 
ministered to the other witnesses, every question 
irrevelaut to the issue, but going directly to the 
credit of the witnesses. 

Next came the important witness in the case with 
regard to the injuries, namely, the local medical 
man. In private life you would scarcely venture 
1;o express a doubt as to the veracity of a gentle- 
man, and you might innocently imagine that even 
apon his oath there would be some recognition of 
his desire to tell the truth at all events, some 
respect for his professional reputation. 

The doctor gives his evidence fairly enough; 
states how he was called in, examined the woman, 
and discovered the broken rib, evidenced by crepi- 
dus', how that he immediately wrote the report; 
that he continued to attend the patient, for which 
attendance he had charged a moderate sum, not 
enough one would have thought to bribe him to 
commit wilful perjury, and so run the risk of penal 
servitude. 

One would also have thought that if the Company 
had doubted this gentleman's word when he sent the 
report, they would have taken some means to test 
its truth. They could easily have sent down their 
medical officer to ascertain whether there was a 
broken rib and ci'epidus or not ; and if there had not 
been, the resident medical gentleman would have 



78 ILLUSTRATIONS IN ADVOCACY. 

been nicely caught. But they preferred to meet his 
statement by mud, a bad argument at all times, 
unless you are lodging a complaint against the ves- 
try as to the state of the roads. 

Now let me ask the student to consider what 
there was to cross-examine this witness about in the 
absence of any evidence to contradict his statement. 
There was really nothing, except as to the nature of 
the inquiries with a view to minimise the damages. 
A judicious question or two as to the nature of the 
injury, and the mode of treatment to which the 
lady had previously been subjected by the first doc- 
tor she had called in, was all that true advocacy could 
have warranted. Instead of this, the Company 
instructed their counsel to ask these questions; 

"Will you swear the rib was broken?" As if 
the doctor, having sworn that it was, would now 
swear to the contrary because the learned counsel 
invited him to do so. It is so like asking a witness, 
"Will you swear you have not committed perjury in 
your last answer?" with a view to prosecute him 
either for the first statement or the second. This is 
an almost exploded style of cross-examination. I 
do not say that an extremely effective question, 
similar to this, may not sometimes be put, but it 
can never be asked to contradict a hard fact which a 
witness has made up his mind to swear to. Try as 
you may, you cannot get him to put his foot upon 
his own neck. The question may be usefully asked 
when a witness has given a careless answer or an 
inconsidered answer, damaging to the cross-examin- 



AC. ALNST STREET RAILWAY COMPANIES. 9 

ing counsel, and the witness is reminded by the 
form of the question that he is on his oath. This 
goes to the certainty of the witness, and not to his 
credit. You may rely upon it that when a witness 
speaks from knowledge and with certainty, no 
amount of "Will you swear to that, sir," will induce 
him to contradict his former answer. 

I come now to the next question which the learned 
counsel was instructed to ask of this medical gen- 
tleman, and it was this: 

" You have been in trouble, haven't you?" 

"In trouble!" exclaims the astonished witness. 

"Yes, in trouble. You know what I mean?" 

"Indeed, I don't," says the witness. 

"Oh, oh, do you swear that? weren't you charged 
with assaulting a girl?" 

The witness' hands fall upon the ledge of the 
witness-box ; every eye is fixed upon him ; he turns 
pale and red, and a strong emotion absolutely shakes 
his frame as he answers: 

"I was; most unjustly." 

"Oh, of course," says the counsel resuming his 
seat. 

Not long, however, was the learned gentleman's 
triumph; a question in re-examination elicits the 
fact that, ten years ago, a girl, for the purpose of 
obtaining money, had made a false charge, which 
had been thoroughly investigated and disproved ; 
that public sympathy had been on the side of the 
accused; that he had retained, ever since, his posi- 
tion, appointments, and practice, and was respected 



80 ILLUSTRATIONS IN ADVOCACY. 

by all who had the best means of knowing his char- 
acter. 

Let me ask for what reason was this question put? 
It had nothing to do with the merits of the case ; 
the Company had never met his evidence, or 
attempted to investigate the truth of his statement 
made in writing months before. It could not go to 
the credit of the plaintiff, who had been seriously 
hurt, and whose injuries could not be disputed, 
except the fracture of the rib, and that only by 
attributing perjury to the doctor. 

On what principle, then, was the question asked? 
Was it to torture the witness ? What effect could 
it have on the verdict? We will see by-and-by 
what its effect on the verdict was. I say nothing of 
its influence on the judge. Sometimes a breath of 
suspicion will tarnish the fairest life. A falling 
away from virtue is to some minds intolerable, but 
advocates must take human nature as it is ; and as 
it is, it will generally be found in the jury-box. 
Look well then to your jury, and turn such an 
onslaught as this in favor of your client ; and rely 
upon it as a sure maxim in advocacy, that for every 
unjust attack upon private character the jury will 
give damages if damages are possible. 

In this case damages were possible. There was 
really no defence to the action. Every fact and 
every probability were in favor of the plaintiff, and 
the jury gave a verdict for 150; injury, I pre- 
sume, 50, 100 for the mud. 

Of course, there was the usual application for a 



AGAINST STREET RAILWAY COMPANIES. 81 

new trial. You may sometimes worry a successful 
plaintiff out of a verdict when you cannot reverse 
it. Companies are seldom content with one trial 
when they lose. So the modest application for a new 
trial was made on the ground that the verdict was 
against the weight of evidence. 

"I suppose the case was properly placed before 
the jury," said one of their lordships. 

"Oh, yes, my lord," replied the counsel for the 
plaintiff. 

"And the witnesses cross-examined ?" 

"Oh yes, my lord ; their whole lives laid bare with 
the utmost fidelity. The doctor was even asked if 
he had not been charged with rape a most scathing 
cross-examination, my lord; the witnesses were 
fairly riddled." 

"You mean puzzled?" said one of their lordships. 

"You mean shot through and through?" said 
another of their lordships. 

"Yes, my lords," answered the counsel. 

"I thought so," said both the learned judges, 
simultaneously. 

"I am sure, my lords," continued the learned 
counsel, who was "showing cause," "the defendants 
cannot complain on the score of cross-examination 
that everything was not done for them that was 
possible. The poor doctor was completely heart- 
broken. The false charge raked up against him was 
at least ten or twelve years old." 

"And did that fail to obtain a verdict for the 
defendants ?' ' 



82 ILLUSTRATIONS IN ADVOCACY. 

"Oh yes, my lord, the facts were so strong that I 
believe murder itself would have been useless. The 
defendants were bound to admit that the plaintiff 
had been injured, but the question was whether the 
doctor who subsequently attended her had been 
guilty of some offense years before." 

"How could that effect the case?" 

The learned counsel did not see how, although he 
and every one else knew in what way it affected the 
verdict. But how could the learned counsel for the 
defendants urge that in mitigation of damages. I 
have, however, known even defendant's misconduct 
urged as a plea in that behalf. So strange an art is 
advocacy ; so unblushing in its pretensions, so art- 
ful in its manoeuvres, so sublime in'its contempt for 
suffering. 

Unhappy doctor thou hast no instrument which 
can give a pang like thine ! 

In dismissing the application for a new trial, one 
of the learned judges uttered the following pithy 
sentences, which deserve to be printed in letters of 
gold and placed over the door of every Court of 
Justice in the kingdom : 

"I have always set my face against turning the 
witness-box into a pillory, and I always shall set 
my face against it as long as I sit on the Bench. If 
witnesses who come to give evidence, often against 
their will, are to have their whole life laid bare by 
cross-examination, and every unhappy failing or 
misfortune of their early days raked up for the pur- 
pose of throwing discredit, as it is called, upon their 



AGAINST STREET RAILWAY COMPANIES. 

testimony, it is a form of torture that no one will 
voluntarily submit to, and the cause of justice will 
suffer. No one will come forward to give evidence, 
for no one will be safe. Few persons could stand 
an examination into the whole of the incidents and 
errors of their past lives. Witnesses should be 
protected in the performance of a public duty, and 
matters which do not directly affect their credibility 
should not be dragged forth to the public gaze. I 
repeat it, you have no right to turn the witness-box 
into a pillory." 

So the verdict stood. It is never wise to cast 
your ship away when, by throwing something over- 
board, you may bring her into port. There is often 
more art in losing a case than in winning one. If 
your horse runs away don't throw the reins on his 
neck. You cannot meet a fact by theory. Not 
long ago an expert in handwriting declared that a 
certain writing was a forgery. He was asked what 
he would say if the man who wrote it came into the 
box and swore it. His answer was he would not 
believe him. Asked, if witnesses came who saw 
him write it, what he would say he answer- 
ed, "If a hundred persons swore they saw him 
write it I would not believe them, because there are 
indications in the handwriting which clearly show 
that it could not have been written by the man whose 
writing it purported to be. The expert was told to 
stand down. Experts in art have given similar 
evidence. 

Counsel should always be on their guard against 



84 ILLUSTRATIONS IN ADVOCACY. 

experts, the most dangerous class of witnesses you 
can meet. They do not swear to facts, but to opin- 
ions, and their opinions are to them what facts are 
to ordinary men. 

k In this case the argument that a rib cannot be 
broken without the fact being discovered by a med- 
ical man was singularly unfortunate, since the tri- 
bunal could contradict it from its own experience. 



85 



CHAPTER VH. 



IN ACTIONS AGAINST DIRECTORS OF CORPORATIONS. 

It has been suggested during the progress of this 
book, that it might give instances of advocacy from 
the State trials. I cannot, however, perceive that 
any good would result from it. State trials are not 
necessarily great trials, any more than great lawyers 
are always great advocates. Neither is it to excep- 
tional advocacy that I desire to direct the reader's 
attention. Everyone has not to defend a royal per- 
sonage or a covey of bishops, and I would much 
rather show, if possible, how to defend a common 
action or a thief. 

Besides, it is easy enough to be heroic when the 
great occasion comes ; the difficulty is to be common- 
place. Everybody likes to do some great thing; 
the "waters of Israel," however, are good enough 
for me. The real test of capacity is in the perform- 
ance of the minor and unapplauded duties of life. 



86 ILLUSTRATIONS IN ADVOCACY. 

It is the everyday work of the profession that I am 
illustrating. The great feats of advocacy illustrate 
themselves, and after all are not different in kind, 
but only in prominence and splendor from the sim- 
plest work. Big cases are no bigger than little 
ones. Let the cause or the charge be what it may, 
you must follow on the same lines and employ the 
same art. The point of sight is the same in a small 
picture as in a large one, ancj the rules of perspec- 
tive must be obeyed in the one as in the other. 
You would defend a master and his slave, a prince 
and a beggar, by the same rules. Treason is not 
dignified because a noble-man is charged with it, 
nor advocacy consecrated because a bishop is the 
subject of it. So that State trials are no better as 
illustrations than sessions trials. What I chiefly 
want to find are blunders ; beauties will discover 
themselves without being sought. 

Let me take a specimen from one of the modern 
masters. It is a simple, common-place case enough, 
but requires skill in management; especially it 
needs a clear and well-limned design in its opening. 
I scarcely think it can be one if it be not well opened, 
and I hardly think it can be lost if the opening 
be clear. The speech, therefore, has art in its 
construction and symmetry in its proportions. 
Much needed here is the advocate's skill in manage- 
ment, for on the other side is an array of counsel 
by no means to be treated lightly. They are at 
least three to one against the plaintiff; for, as it 
appears, several gentleman of position are charged 



AGAINST DIRECTORS OF CORPORATIONS. 87 

with fraud. It is said they have issued a false pro- 
spectus for the purpose of inducing the public(and 
among them the plaintiff) to subscribe for shares in 
a certain commercial company. The social position 
of the defendants, therefore, is an important ele- 
ment. 

Now, several things have to be established before 
a verdict for the plaintiff can be found, and in order 
to understand the outline which I shall give of the 
opening speech, it is proper to state what the points 
are that will have to be found by the jury to entitle 
the plaintiff to a verdict. 

First. It must be proved that the defendants were 
responsible for the contents of the prospectus. 

/Second. That the statements contained in the 
prospectus were false. 

Third. That they were false to the knowledge of 
the defendants, or, at all events, that they were made 
in reckless ignorance of the facts. 

Fourth. That the plaintiff took his shares, believ- 
iny the statement to be true. 

Now, simple as this case is, it is difficult; there is 
much to be established. The facts must be clear, 
and, if I mistake not, the opening speech must be 
clear too ; it must be so arranged that there must 
stand out before the jury the position of the defend- 
ants, their relation to each other, their connection 
with the Company, the nature of the article which 
the Company was formed to deal in, the knowledge 
of the several defendants as to the contents of the 
prospectus, the position of the plaintiff, and the mode 



88 ILLUSTRATIONS IN ADVOCACY. 

in which he was induced to take the shares. If all this 
be well done, there will appear before the jury 
something with a well defined outline, and they will 
be able to watch the details of the evidence as they 
fit themselves into and complete the design. 

Let us listen to the advocate. He makes a good 
start, because he calls the attention of the jury to 
"human gullibility." That's the groundwork on 
which all fraudulent companies work. So it is put 
in the forepart of the opening, and it tells well, as 
you can see by the pleasant smile that passes over 
the faces of the jury. Their attention is at once 
fixed. There will be something amusing in this 
"human gullibility," and a new feature of it will, 
in all probability, be brought to light. Human 
gullibility is always interesting, from the gypsy for- 
tune-teller's vulgar imposition to the spiritualis- 
tic revelations of the other world, which captivate 
the enthusiastic believers in the impossible. 

We have now an extremely short statement, as to 
who iho, plaintiff was, and are told that he brought 
his action against the defendants for fraudulent mis- 
representations, whereby he was induced to take 
shares in a company called the ' ' Chocolate Sawdust 
Company." 

That's a good mode of telling in a few words 
what the jury have to try. So to speak, it was "the 
plain English of it," and that is what the jury like. 
It occupies the foreground in the speech, and 
throughout the trial will be always present in their 
minds, As we listen with intense interest we won- 



AGAINST DIRECTORS OF CORPORATIONS. 89 

der what will come next. We have a first-rate 
advocate to tell us, and, therefore, had better listen. 
He will be sure to give some important fact the 
place of honor, and here it is-: 

The failure of the Company in which the plaintiff 
was induced to take his shares. , The Company, it 
appears, had gone into liquidation after the plaintiff 
had taken his shares, and he was then required to 
pay calls upon a hundred one pound shares, he 
having only paid the money upon allotment. 

You can see the bird hopping into the trap as 
plainly as possible if this statement be correct. 

Next comes a description of every one of the 
defendants. This Avas necessary in order to the 
complete understanding by the jury of the persons 
with whom the plaintiff had to deal. If they are 
shown to be men used to the business of getting up 
companies, to the inner workings of the board-room, 
and to the intellectual business of prospectus draft- 
ing; if they are shown to be sharp, shrewd, clever 
men of the world, with a thorough knowledge of 
human gullibility, you may depend upon it this case 
will be more than half won by the opening. All 
this, therefore, was shown most clearly by the 
description of the defendants and their several occu- 
pations as early as possible in the speech for the 
plaintiff. The jury are making notes you see before 
a word of evidence is given. They are noting human 
gullibility. So far, then, all is clear and straight- 
forward. The case is unfolding as nicely as possible, 
without any exaggeration of language or facts, 



90 ILLUSTRATIONS IN ADVOCACY. 

There are already some good strong inferences and 
a fair amount of prejudice; the way, therefore, is 
prepared for the history of the transaction* which 
now in its natural order comes and unfolds itself as 
follows: 

In 18 , one of the defendants, Hookey, who was 
an engineer, took out a patent for obtaining a par- 
ticular product from the seeds and fruit of a certain 
vegetable. Hookey in fact was a trustee for him- 
self and the other defendants. 

The next step was to sell the patent rights to a 
gentleman named Albert Montague Strawman, the 
the son of one of the defendants, in consideration 
of one penny per pound royalty on articles of food 
or beverage which might be sold- under the afore- 
said patent, and 20,000 in cash or shares fully paid- 
up in a company which was to be started by the 
said Albert Montague Strawman, to be called the 
"Chocolate Sawdust Company, Limited." 

The Company was to be started with a nominal 
capital of 50,000 in 5 shares, and was to have 
the option of purchasing the royalty for 30,000. 

Now let us pause a moment and survey the road 
we have travelled. At this point will not the jury 
ask themselves how it came to pass that the son of 
one of the defendants was to be so highly favored ? 
why his father was to present him with so valuable 
a gift? what he had done to deserve it? and why the 
parent should not have kept it himself ? with various 
other questions not unimportant at this stage of the 
enquiry. 



AGAINST DIRECTORS OF CORPORATIONS. 91 

Next comes the story of the prospectus. Straw- 
man being chairman of the Company, and Romney 
the solicitor, they drew out this important docu- 
ment: "And it was part of their scheme" the jury 
were told "that the shares should not be put into the 
market, but be chiefly held by these defendants." 
Out of 6,800 shares which were allotted, 6,400 
were appropriated by the defendants. Then we 
are told that "flaming announcements were pub- 
lished in the newspapers describing the merits of 
this wonderful product. It was to possess seven 
distinct advantages over ordinary chocolate, the 
distinct advantages being conferred by the saw- 
dust. 

The next step was, that under the powers of this 
Company, as set out in the prospectus, subsidiary 
Companies were to be formed for the purpose of 
buying at extravagant prices the right to use the 
patent in foreign countries. Among them was the 
French Chocolate Sawdust Company. 

Then comes the inducement held out to the 
plaintiff which caused him to embark in the mag- 
nificent scheme, the inducement being contained 
in the prospectus, which was now read the first time. 

Great success it appeared from the document 
had attended the Company in England, and that 
being so, the directors felt themselves justified in 
stating their confident belief that the profits would 
pay dividends of at least 50 per cent, on the nomi- 
nal capital, and would exceed those of the English 
Company, which Company had entered into a con- 



ILLUSTRATIONS IN ADVOCACY. 

tract that would yield a return by way of annual 
dividend of a sum equal to the whole paid-up cap- 
ital of 34,000." 

A truly magnificent project, proving the truth 
of Solomon's words that "man findeth out the 
knowledge of witty inventions." One had need to 
understand the words of the wise and their dark 
sayings "before embarking in so unprecedented an 
enterprise." 

The case being thus far simply stated would 
appear to be almost proved, and in reality the jury 
think so if you can form any opinion from their 
countenances. It will take some getting over, 
that statement, because no one will believe that 
three intelligent business men like the defendants 
would really cast so much "bread upon the waters" 
with the hope of finding it after any number of 
days. 

Now comes the learned counsel's bold assertion 
that there was no justification for this statement; 
and he says further, that the only means by which 
the English Company made any profit at all was by 
the sale of the patent rights to the French and 
other Companies. That they obtained 50,000 by 
these means, and a further sum of 30,000, which 
was by capitalization of the royalty. These sums 
the defendants it appeared put into their pockets, 
although the wonder is that being such public ben- 
efactors they did not put them into the pockets of 
other people. 

But the defendants did so far take the public into 



AGAINST DIRECTORS OP CORPORATIONS. 93 

their confidence as to sell their own shares, which at 
one time had been quoted as high as 50 premium, 
when only 1 per share had been paid. 

Then said the learned counsel, "after this great 
success the parent Company went into liquidation" 
the success it had reached was due to swindling, and 
that the whole of the profits had found their way 
into the pockets of the defendants. 

There is in this opening, of which I only give the 
form, a model for any advocate to study. Fifty 
counsel might have opened the case in fifty differ- 
ent ways, but not one would have been so effective. 

First. The claim. 

/Secondly. The failure of the Company after the 
plaintiff had taken his shares. 

Thirdly. The position of the defendants, and 
their character as deduced therefrom, with all the 
probabilities arising from their intimate knowledge 
of the workings of companies, and their knowledge 
of "'human gullibility." 

Fourthly. The history of the undertaking, with 
all its paternal and filial reciprocities. 

Fifthly. The magnificent prospectus with its 
probabilities, that is to say, its absurdly exagger- 
ated advantages calculated to deceive only rapacious 
gullible fools. 

Sixthly. The $80,000 in the pockets of the defend- 
ants, which was not a bad egg for a dead goose to 
lay. 

Now, I would like to ask what powers of advo- 
cacy could overcome such a set of facts as these ? 



94 ILLUSTRATIONS IN ADVOCACY. 

Turn them, twist them as you will, there they are, 
and, like a glass prism, they present the same sur- 
faces, but throw different colored rays at every 
movement. 

There is only one way for skilled advocacy to 
to meet these facts, although the unskilled would 
doubtless find many. The one way is not to dis- 
pute the facts, but to attack the probabilities. If 
you have carefully followed the incidents of the case 
you will have seen that it is not the facts so much 
that the learned advocate has made his case of, but 
the probabilities arising therefrom. For instance, 
it might be quite possible for one defendant to sell 
to the son of another defendant a valuable right for 
a trifling sum. But what is the probability? 

So, if you take the prospectus, it might be a 
wicked fiction from beginning to end, and yet the 
defendants might have been themselves imposed 
upon by some one more clever than themselves. 

But what are the probabilities ? 

So that, after all, probabilities are the very 
strength or the weakness of facts ; sometimes they 
will destroy the evidence of facts altogether. State 
a fact with an improbability, and you will be liable 
to disbelief. But, then, suppose a man, known to 
be a man of high character, states an improbable 
fact, what then? 

I answer, the probability is that it is true. 

But when a trustworthy witness has stated a fact, 
although he has only stated it to the best of his be- 



AGAINST DIRECTORS OF CORPORATIONS. 95 

lief, with a probability it will take a great deal of 
swearing to get over it. 

Say you prove that a house caught fire in three 
different rooms at the same time, although you have 
pot a particle of evidence beyond that fact, yet the 
probability of its being the work of an incendiary 
will be so strong as to be irresistible ; and though fifty 
witnesses were to swear to a series of facts with a 
view to account for the origin of the fire in opposi- 
tion to that probability, it would not have the least 
effect even on " human gullibility." 

Probabilities, therefore, are the mainstay, of evi- 
dence , are, in fact, the evidence ; and I will endeavor 
to show, by-and-by, how almost entirely Cicero 
builds his defences upon them. In the present case 
the advocates for the defendants knew well enough 
what they were about, and so they opposed evi- 
dence to the probabilities. The descendants swore 
they were not conscious of any mis-statement in the 
prospectus. 

One learned counsel said "It jias been asserted 
that in a contract which was entered into between 
my client and one of the witnesses for the plaintiff, 
he, the witness, had been befooled, and that my 
client is a swindler. "But," said he, "there is not 
a tittle of evidence to support such statements." 
This pretty well I think proves my proposition as 
to probabilities. 

Another of the defendant's counsel said that to 
establish fraud against his client, who was the solici- 



96 ILLUSTRATIONS IN ADVOCACY. 

tor to the Company, it must be shown that he acted 
not merely as a solicitor, but as an individual, and 
he submitted it would be very difficult for the jury 
to come to any such conclusion. Difficult no doubt 
to make a solicitor out of nothing, or to make him 
an abstraction; but not difficult surely to believe 
that what the solicitor knew the individual knew also. 
Even if a solicitor be two persons, you can scarcely, 
believe that one of them can act without the other's 
knowledge. So that subtle reasoning fails, as fail 
must all attempts to separate a man -from himself, 
or to make two men out of one. The defences failed, 
not because they wanted ability and ingenuity, but 
because they lacked that probability which was so 
strong on the other side. Men have not even yet 
succeeded in gathering "grapes of thorns, or figs of 
thistles;" horticulture has not attained that pitch of 
perfection at present. When it does you may pro- 
bably make very good chocolate out of sawdust. 

I will add, with reference to this case, that' I am 
expressing no opinion of the character of the defend- 
ants, or the nature of their transactions. I have 
simply dealt with the statements and the conduct of 
the case from the advocate's point of view, and 
made such reflections as have occurred to me, not 
with the wish to enter into the merits of the case or 
to express an opinion upon it, but how from its 
management the jury were driven to the conclusion 
they arrived at* It is not the merits of the case, 
but those of the advocate that I am concerned in 



AGAINST DIRECTORS OF CORPORATIONS. 9 

pointing out, and I have done so without the remotest 
intention of casting an imputation on any one con- 
cerned in the cause. I know nothing of the parties, 
the cause, or the chocolate. 



CHAPTER VIII. 



IN ACTIONS AGAINST INSURANCE COMPANIES. 

This .case will illustrate the fallibility of human 
judgment, when formed before the facts are fully 
known; the difficulty which sometimes arises in 
advocating a righteous cause, as well as the effects 
of prejudice upon the progress of a case. 

The action was brought by a mechanic against a 
Fire Insurance Company for 100, upon a policy of 
insurance for tools and furniture which had been 
destroyed by fire. 

There was no policy of insurance and never had 
been ; so the pleader's art was manifested in alleg- 
ing first that there wds a policy, and in the alterna- 
tive of there being none, then that there was an 
agreement to grant a policy. It also turned out there 
was no agreement even, so the pleader's art was 
rendered still more conspicuous. The learned coun- 
sel for the plaintiff commenced his opening speech 



AGAINST INSURANCE COMPANIES. M 

by alleging that the Company was a miserable 
wretched Company, a family party who traded on 
the poor, and who, after taking the premiums for 
insuring, failed to perform their contract. And this 
statement, which was all untrue, caused the clever 
jury to see through the case at once before ever a fact 
in support of a single statement was deposed to, and 
every juryman became a prejudiced and unscrupulous 
advocate for the plaintiff. They were a special 
jury, and wagged and shook their special heads, as 
every epithet and insinuation were hurled at the de- 
voted and maligned Company. I verily believe that 
if they had been asked for a verdict before the 
counsel for the plaintiff had sat down, they would 
have given it. They did in fact propose to give it 
before the counsel for the defendant Company had 
been heard ; and sent up to the judge what they con- 
sidered a verdict for the plaintiff. His lordship, 
however, told them that the Company was entitled 
to be heard, or there would undoubtedly be a new 
trial. 

The special heads therefore wagged, and learned 
one lesson, namely, that both sides in a cause must 
be heard before verdict can be returned. The facts 
of the case were as follows : 

An agent of the Company had asked the plaintiff 
to insure. Plaintiff was already insured in another 
office, but said he was not. A proposal form was 
shown and read over to him, and a printed receipt 
form was read over to him which stated in the 
plainest language that the risk was not covered until 



100 ILLUSTRATIONS IN ADVOCACY. 

the proposal was accepted by the Company and the 
policy or notice of acceptance was sent to him. Five 
shillings was paid on account of deposit, to be re- 
turned if the proposal were not accepted. This was 
on the 4th February. The proposal was sent to the 
manager of the Company on the 8th. On the 14th 
of the same month two events occurred ; the premi- 
ses were burned down, and the Board of Directors 
refused to entertain the proposal. It was dearly 
established that at the time they did so they had never 
heard of the fire. But before this was proved the 
learned judge observed that if the fire had not oc- 
curred on that day, could anyone doubt that the pro- 
posal would have been accepted? 

Here the special heads wagged with conscious wis- 
dom and delightful expectation. Following my 
lord's leading, the whole bands of fiddlers struck 
up with a vehemence that startled Justice from her 
propriety, little dreaming that the plaintiff could 
not by any possibility dance to such a tune, and not 
perceiving that if the directors of the defendant Com- 
pany had known of the fire, and had refused to ac- 
cept the proposal for insurance on that ground alone, 
they would have la I a perfect right to do so, all the 
fiddlers in creation to the contrary notwithstanding. 
Again, had the jury been less prejudicial and less 
inclined to punish the Company for the untrue accu- 
sations of the learned counsel, they would have re- 
flected that as a matter of fairness his lordship would 
never have made the observation if the verdict could 
have been based upon it. Therefore the jury 



AGAINST INSURANCE COMPANIES. 101 

began by being unjust, and ended in being foolish. 
They are sometimes so clever and absurd. When- 
ever you get such a jury as this you had better let 
them make themselves as ridiculous as possible, and 
show that they are unfit for the post they occupy 
their verdict then must be abortive. After abusing 
the defendants the counsel undertook to prove con- 
clusively that the receipt of the five shillings covered 
all risk from that date, a great and impossible task 
truly, with all the documentary evidence dead to 
the contrary. 

A dry, hard fact needs no hammering. It resists 
argument, and stares you in the face, notwithstand- 
ing the most violent protestations that it has no 
existence. But when a jury is determined to ignore 
facts, as I am glad to say they very seldom are, you 
may quietly ignore them, for facts will outlive the 
jury. Again, an alleged fact which wants so much 
""conclusive proving" is seldom conclusively proved 
at all. It melts away generally like a snowflake 
that you examine in the palm of your hand. And 
in this case I thought the learned counsel did pro- 
test too much. He alleged facts too big for proof; 
he denounced the defendants and left his denuncia- 
tions as the only evidence against them ; he insin- 
uated motives without showing a possible basis on 
which they could rest. He said the live shillings 
was to cover all risk, and the twelve special heads 
nodded as though they had been present at the pay- 
ment thereof, and as if witnesses could never lie. 
So that point was established to their satisfaction. 



102 ILLUSTRATIONS IN ADVOCACY. 

Next, said the learned counsel, the proposal was 
actually accepted by the Board. That also was 
taken as proved by the jury. Next it was affirmed 
that the policy was actually made out. Here the 
fiddlers struck up again, as though some great good 
fortune had befallen them. Next, it was said the 
directors all heard of the fire after the acceptance 
of the proposal, and then met and destroyed the 
proposal. This looked something like infamous 
conduct, but it lacked one essential element to make 
it evidence, that is, proof Then it was said the 
man would be called who received the accepted pro- 
posal from the Board and made out the policy upon it. 

So that altogether a marvelously good case was 
opened. No link was missing, and nothing but the 
evidence in support of it wanting. But unfortu- 
nately, the only so-called proof of all this was the 
oath of the plaintiff as to the statement made bv 
the agent; a question on the proposal form asking 
the agent whether he had covered the present risk or 
not: the calling a quondam servant of the Company 
who had been dismissed for not handing over a pre- 
mium paid to him, and another discharged servant 
who had been the victim of a similar accusation. 
But neither of the discharged servants swore up to 
the mark, or up to any mark whatever. Their evi- 
dence only went to show their own malignancy 
against their late employers. 

The jury one after the other in rapid succession 
put questions to the witnesses and questions to the 
judge, and even addressed arguments to hig lord- 



AGAINST INSURANCE COMPANIES. 103 

ship with a view of showing that the defendants 
were liable. Never was there such a battle in a 
Court of Justice. 

The jury practiced file firing and volley firing 
with the most untiring perseverance, evidently with 
the object of establishing a claim which had neither 
foundation in law or in fact. Why did these twelve 
heads wish the plaintiff to win? Not because he 
had a ground of action, but because the Company 
had been abused, the man had paid five shillings, 
and his things bad been burned. 

In cross-examination it was shown first that all 
the vilification of the Company was groundless; 
there had never been but one resistance to claim 
before this during the Company's existence; tens 
of thousands of policies had been granted and thou- 
sands of claims paid. In fact the Company stood 
about as high as any Company could stand, and the 
learned counsel, who had opened with so much acri- 
mony, had to publicly withdraw all he had said 
against the Company. This was a good effective 
starting point. If you once get a nice piece of high 
level ground to stand upon, you can command a 
pretty good view of the situation. 

Judge sees at once it is not a "wretched, miser- 
able Company" or a "family party," but a bona 
fide respectable body of gentleman, and we hear no 
more of attempts to win the case by abusing them. 
Vituperation in fact turns out to be forensic elo- 
quence, that is all. 

Still, the jury are benevolent-hearted gentlemen, 



104 ILLUSTRATIONS IN ADVOCACY. 

and, like a good many other persons outside the 
jury-box, they feel disposed to act generously by 
putting their hands into other people's pockets 
instead of their own, a principle which honest men 
who are not so benevolent set their faces against. 
Charity may cover a multitude of sins, but I never 
heard that dishonesty was one of them; that, when 
it obtains its deserts, is usually covered by a less 
attractive garment. The next point established 
was, that the opening speech was ever so much 
larger than the evidence in every particular, one of 
the greatest mistakes a counsel can make. The 

~ 

plaintiff did not prove, as he undertook to do, that 
the policy was issued, but that it was not, and in 
this he was corroborated by the two discharged serv- 
ants. The point remaining, therefore, was, as to 
whether the agent had made the alleged verbal bar- 
gain, and it was upon this point that the sagacious 
jury made up their twelve several minds that he had. 

But the judge was of opinion that even if that 
were so, there was still left the question as to 
whether the agent had authority to make it. 

Then the jury became illumined by a ray of bright 
intelligence^ not their own, but the judge's, and 
suggested that it was really altogether more a mat- 
ter for the judge than for them. 

To this the defendant's counsel cheerfully as- 
sented, and the plaintiff's counsel being also agree- 
able, the whole matter was left to be decided by the 
learned judge, and the jury were dismissed. 

Now, let it be observed that this jury broke down 



AGAINST INSURANCE COMPANIES. 105 

through their wrongheadedness. The very surren- 
der of the case was only in keeping with their pre- 
vious conduct. If they could have returned their 
verdict for the plaintiff without hearing the defend- 
ant's counsel they would have done so. It was the 
refusal of this generous offer that led to the final 
rupture. Seeing that they would have to spend the 
next day in the jury-box, they resigned their func- 
tions to his lordship. Constantly baffled in their 
desire to put something into the plaintiff's pocket, 
they gave up in despair. 

This is the greatest instance I have known of 
prejudice and wrongheadedness in the jury-box, 
although I have seen many specimens in various 
decrees. 

Having got Benevolence and Stupidity out of the 
jury-box, there does now seem a chance for Law 
and Justice. His lordship's opinion has been 
materially changed from what it was before he 
heard the evidence, and his mind- is open to be con- 
vinced by arguments on the one side and the other. 
It is clear, too, that whatever the result, his lord- 
ship is glad to be rid of that special twelve-headed 
prejudice which would not permit so much as a fair 
trial, or, indeed, a trial at all before verdict. 

At the sitting of the court the learned judge 
announces that his opinion is in favor of the defend- 
ants upon the question as to whether the agent of 
the Insurance Company had authority to make the 
verbal bargain which the plaintiff swore he did, 
which verbal bargain the reader will remember was 



106 ILLUSTRATIONS IN ADVOCACY. 

that if the plaintiff paid five shillings, the insur- 
ance was to commence from that day. The judge 
thought he had no authority to make such a bargain. 
But his lordship was of opinion that the agent did 
in fact make that bargain, whether he had authority 
to do so or not. Here, then, the reader will per- 
ceive, was a case in which the evidence had all been 
given, and the effect upon his lordship's experi- 
enced mind was adverse to the defendants. If 
argument can change the judge's opinion, it will 
be something in favor of advocacy. If it cannot, 
it will show either that the facts are too conclusive 
for argument, or that the arguments have been too 
weak to dispose of them. 

Before the defendants' counsel begins, it may be 
observed that the plaintiff's counsel argues on the 
first point as to the agent's authority; and he argues 
sufficiently to call upon the defendants to address 
the court on both points. 

Now, let me observe, that a roundabout way of 
arguing upon facts will not do. Facts follow one 
another in regular succession ; they may not flow in 
a straight line, and seldom do ; but you must follow 
their course if you would trace out the result. If 
you dodge about for the purpose of making short 
cuts you will miss some little rivulet, may be, that 
has increased the volume and even had an effect 
upon the direction of the current. 

In this case the facts have first to be reduced to 
their true proportions. It is apparent that many of 
them have been exaggerated, many unnatural infer- 



AGAINST INSURANCE COMPANIES. 107 

ences have been adduced, and several false conclusions 
arrived at. The superfluous matter then is trimmed 
away. It is seen to be superfluous, and the learned 
judge notes it by sweeping it aside. 

The subject being bare, its exact shape and form 
are seen and the advocate asks, "What is the case?" 
not for the defendant, but for the plaintiff. No 
matter what the defendants' case is at present, the 
judge is satisfied with the plaintiff's, and unless you 
can reduce that, you may as well sit down, because 
you cannot displace the plaintiff' s case by any argu- 
ment about the defendants'. Therefore, the first 
question is, "What is the plaintiff 's case? 

Now, mark; all irrelevant evidence is examined 
and eliminated; shown to be irrelevant, and then 
taken away. Ambiguous phraseology employed on 
behalf of the plaintiff, is also disposed of demol- 
ished, with all its inferences, while forensic vituper- 
ation is collected like so much rubbish and thrust 
aside. 

The plaintiff says that the defendants' agent told 
him that the receipt covered the risk from the date 
when the five shillings was paid. That is the whole 
o/his case, and that question has to be argued upon 
the probabilities. 

The agent has sworn the contrary, and therefore 
the conflict is conspicuous and direct. What is to 
influence his lordship's mind so as to change it from 
a present belief in the word of the plaintiff to a 
future belief in that of the agent? 

First, the conduct of the plaintiff and of the agent, 



108 ILLUSTRATIONS IN ADVOCACY. 



the probabilities on the one side and the other. 

The receipt in express terms contradicts the plaint- 
iff. The strong probability was, as the learned 
judge himself acknowledged, that the agent would 
not make a verbal statement in direct contradiction 
of the receipt he gave. Second probability is, that 
the plaintiff, who could read and write, would not 
take the receipt without looking at it. 

Another fact was that, two or three days after, as 
the plaintiff himself admitted, he did read the receipt, 
and knew therefore that his goods were not covered. 

Probability arising from this was that, if the 
agent had told him a lie, he would, on discovering 
it, have gone to the office and complained of the 
fraud that had been practiced upon him. 

Another fact admitted by the plaintiff was that 
the agent had told him that if the proposal was not 
accepted the five shillings would be- returned. 
Improbability arising therefrom was, that the agent 
should have covered the risk for the intervening 
time for nothing. 

Then comes another fact. The plaintiff, after the 
lire, went to another insurance office, obtained a 
form, and applied for his money, but the place was 
closed. Probability, therefore, was, that he would 
then have gone to the defendants' office and made 
his claim, if he had really been told that the risk was 
covered. The fact was that he did not go ; but having 
set it about that he was insured in the defendants' 
Company, a letter was sent to him from them, ask- 
ing him to call 



AGAINST INSURANCE COMPANIES. 109 

The next fact was, that some considerable time 
after he did call, and then produced his receipt. He 
was told that the receipt did not cover him. He 
affirmed that it did and that he should stand or fall 
upon that receipt. Probability arising from this 
fact is very strong ; if he had been told by the agent 
that the risk was covered, and he had been fraudu- 
lently deceived, he would have said so when he was 
told at the office that the receipt was useless. It was 
clear he never said anything of the sort, because the 
question was put to the witness with whom he had 
had the interview, as to whether any such assertion 
was made, and answered in the negative; the plaint- 
iff, however, had not been asked a question about it 
in chief, nor was he recalled to contradict it. From 
not having been asked the question in chief, another 
probability, amounting as near as possible to a fact, 
arose in overwhelming importance namely, that he 
had never told his solicitor he had been deceived, 
and, therefore, no such complaint had got upon the 
counsel's brief. 

Here the learned judge said he was satisfied that 
the agent's story was right, and the plaintiff's 
account wrong, and accordingly gave a verdict for 
the defendants. 

The plaintiff's case had, in fact, been founded on 
vituperation and insinuations of fraud ; the jury had 
been too ready, as juries often are, to let their hearts 
govern their heads, in which case justice is invari- 
ably turned topsey-turvey. They little think, how- 
ever, in their ignorance of legal procedure, that ver- 



110 ILLUSTRATIONS IN ADVOCACY. 

diets given out of sympathy in the face of facts and 
law, entail disappointment and loss on the un- 
happy victims of their compassion. 

When ignorance and Prejudice get into the jury- 
box, as they sometimes do, counsel have indeed a 
rough time of it. You cannot enlighten stolid 
Stupidity. 



Ill 



CHAPTER IX. 



IN ACTIONS ON CONTRACTS. 

A mistake in advocacy is always worth noting. It 
is better than a maxim, and more useful than any 
meteoric display. 

The following case is one of the simplest, and its 
moral one of the clearest. You will observe that I 
am not selecting my lessons from inexperienced 
advocates, but from the performances of those who 
are apt to look down with commiseration on the 
failings of the younger members of the profession. 

In this case a Mr. Tent was sued by a Colliery 
Company for 94. Mr. Tent said, "1 admit the 
debt, but I have a claim against you of a larger 
amount, because you agreed to supply me with 
10,000 tons of coal during the year ending Sep- 
tember, and in May you broke your contract, and 
refused to supply me. I claim the difference between 
the contract price and the market price from May to 



112 ILLUSTRATIONS IN ADVOCAC?. 

September." The issue, therefore, was simple, 
although it was necessary to read through a great 
deal of correspondence and to consider many facts. 

This is how the bean-stalk rose. 

Mr. Kewsea was engaged for the Colliery Com- 
pany, while Jack and Harry, two juniors, were 
retained by Mr. Tent. 

When the case was called on, in the ordinary 
course of things, the Giant would have accepted the 
admission of the juniors that their client owed the 
money, and remained quiet in his colossal strength. 

But Kewsea was eager to take every advantage 
.for the benefit of his clients, although this over- 
reaching advantage often turns out not to be for 
their benefit. 

The pleadings did not admit the debt, so Kewsea 
availed himself of that technicality. The plead- 
ings evidently were of more authority than the 
defendant or his counsel. "I don't care," says 
Kewsea, "about your admitting the debt; the plead- 
ings don't admit it, so I have the right to begin." 
But it is not always, as the reader knows, the horse 
that is most rampant at starting which is first to 
pass the winning-post. I have seen him before now 
in a very ignominious position at the finish of the 
race. Get a good start if you can, but remember 
that a good ending is better. In advocacy it is not 
always wise to stand upon your strict rights. Con- 
cession sometimes wins. 

The two juniors smiled together when they heard 
their gigantic opponent, with a deep voice, claim the 



ACTIONS ON CONTRACTS. 

"right to begin;" but his voice did not frighten 
them in the least, for although these giants are sup- 
posed to eat juniors up, Jack and Harry were brave 
little chaps,and they knew if they could only get the 
chance they could slay Mr. Kewsea, so they sat 
close up together on their seat behind him, and 
swung their legs and touched one another with their 
elbows, and whispered, "We shall have him nicely 
by-and-by." 

"He's got no case to open," says Jack; "we admit 
his claim." 

"And he can't open ours," replied Harry, 
"because he doesn't know what it is." 

"This is fun," said the juniors. "What is he 
going to begin about? Nobody has hit him." 

"Perhaps he is going to tell the judge a nursery- 
story." 

"I wonder if it's 'Jack and the Bean-stalk?' ' 

At this suggestion both the juniors were immensely 
tickled, and declared they would call the case by that 
title. 

"He is to be the Giant," said Harry, "and we 
are to be the two little dwarfs he is trying to eat 
up." 

One need hardly to observe that it is as well before 
you attempt to answer a claim to ascertain what the 
claim is, and that you ought to keep your witnesses 
out of the box until the necessity comes for calling 
them. You have little use for them until there is 
something to contradict, to prove, or disprove. 

Again, you leave them to be cross-examined and 



114 ILLUSTRATIONS IN ADVOCACY. 

to give evidence for the other side. No wise man 
builds a ship on the top of a mountain. 

How strange all these observations must seem to 
the youngest student ! Yes, strange indeed, but 
not unnecessary, since the temptation to begin is 
strong, sometimes almost irresistible. There is 
much in advocacy to learn that comes not of prac- 
tice, and much to unlearn that comes of slovenly 
and unobservant practice. Here was not an inex- 
perienced junior making this mistake, but one of the 
leaders, and, therefore, one likes to follow thought- 
fully and observe attentively until the bourne is 
reached. 

Mr. Kewsea begins to open. You asked what? My 
answer is Bradshaw. Not irreverently do I say it, 
nor as if I would say "bosh!" I mean Bradshaw. 

The railway map was produced, handed up to the 
judge, who looked as if he had seen it before, but 
said nothing. It was next handed back for the pur- 
pose of separating the map from the time-table. It 
was then re-delivered to the judge. 

Now comes the solution of the mystery. It was 
pointed out that certain places on that map were 
west of a town called Cockermouth, and that there 
were other places which were not exactly west of 
Cockermouth. There was no disputing this, and if 
that had been Mr. Kewsea's case, it would have been 
a tolerably strong one. 

The juniors smiled meekly, and quietly asked one 
another what it all meant. As a lecture in geogra- 
phy it was fairly well put. 



ACTIONS ON CONTRACTS. 115 

Then the subject-matter of the opening changed, 
and observations were made concerning a pit's 
mouth. This, doubtless, had some reference to the 
coal trade. 

The court was next enlightened as to the mode of 
filling coal trucks, an interesting subject, no doubt, 
for a winter fireside, but why it should occupy his 
lordship's time was a mystery unsolved and inex- 
plicable. And thus, after enjoying this "right to 
begin," the learned Giant claimed the right to finish, 
which he exercised by observing that he could not 
conceive what defence there was to the action. Then 
the manager of the Coal Company was called and 
was examined about a variety of things, chiefly to 
prove the circumstances under which the admitted 
debt was contracted. 

But the bean-stalk is reared, and although it 
belongs to the Giant, Jack proceeds to climb it, and 
no doubt from the top he will be able to see a long 
way; and that is what he desires, for when you once 
get a good view of the situation you can make the 
most accurate calculation, and determine your line 
of operations with an almost mathematical certainty 
of success. 

"Now," says Jack, from the top of his bean-stalk, 
"will you be kind enough to tell me, sir, whether 
the price of coals went up soon after the 20th Sep- 
tember?" 

That is an innocent question enough, just such an 
one as a child might put. And the witness answered 
"yes," like a man. It was prospective evidence, 



116 ILLUSTRATIONS IN ADVOCACY. 

for nobody but' the two juniors could possibly tell 
what it was going to lead to. The judge, however, 
carefully notes it, because he knows well enough 
that little Jack from his post of vantage can see a 
long way all round. 

So his lordship says, "stop a minute, let me take 
that down." 

But the Giant didn't know what it meant, nor his 
witnesses. It seemed such a far-off, out-of-the-way 
sort of question. 

"Did it continue to rise till the end of the year?" 
asks Jack. 

"Oh, yes," says the witness. 

"You say you entered into this contract with the 
defendants on the 20th of September?" 

"That is right sir." 

"And he was only to supply the district west of 
Cockermouth ?" 

"That was all." 

"Did you send coals to his order to almost every 
other part of England?" 

"I did; but did not know it till some time after." 

"I suppose the plaintiff must have known it?" 

"Oh, yes; but I have found out that these coals 
were not supplied under the contract. 

This is one of the things Jack could see ever so 
far off. It was a fatal answer, as will appear. The 
question that follows is like pouring molten lead on 
to the Giant's head. 

" Under what contract then were they supplied?" 



ACTIONS ON CONTRACTS. 117 

"Under no contract," must be the ridiculous 
answer. 

"Were they not delivered at the contract price?'* 

"They were." 

"Was that two shillings a ton less than the then 
market price?" 

"It was." 

The counsel having got that fact leaves it. He 
has no wish to argue with the witness, but reserves 
his inferences for the judge. How delightfully the 
plaintiff's witness is proving the defendant's case 
will be seen by his speech hereafter, in which all these 
answers will reappear arranged in the most orderly 
manner, like birds and beasts walking into Noah's 
ark in the picture. 

Both the juniors chuckled immensely, I thought 
too immensely, because it made Mr Kewsea, angry. 
Can the Giant prove any more of the defendant's 
case I wonder? The junior cross-examines still 
further, and elicits answers which show that for 
eight months coals were supplied to the defendant's 
order for places outside the particular district, and 
not only so, but that one order in the district is 
actually objected to by the plaintiffs because it is one 
of their customers. A good and fatal point ! 

Then the Secretary is called by the plaintiff and 
by that means all the letters to him and the Com- 
pany are got in, in crow-examination, a much better 
way, under the circumstances, than getting^hem in, 
in chief, because of various damaging questions in- 
terposed, and suggestive comments by way of ques- 



118 ILLUSTRATIONS IN. ADVOCACY. 

tion. This was the very gentleman who supplied 
the coals, saw that they were sent to places outside 
the district, some to London, which was a long way 
north of the particular district; proves that the 
first list of customers sent to the defendant for the 
purpose of the defendant's contract contained places 
outside the district; proves that he knows all about 
the contract, that the directors knew all about it, 
and all about the places to which the coals were sent ; 
knew all about the delay in supplying the coals, the 
entry of them in the books at the contract price, 
and a variety of other things more or less useful to 
the defendant. No one ever knew why these wit- 
nesses were called when it was for the defendant to 
make out his case. But one knows that very often, 
when you get a considerable distance out of your 
way, you are apt in your perplexity to try and make 
a short cut to some place, if haply you may find 
your track ; but it's awkward, sometimes dangerous, 
especially when you are being watched or pursued 
by an enemy. 

Now here comes the molten lead again. 

Do you agree with the last witness that the coals 
supplied out of the district were not supplied under 
the contract? 

A truly awkward question, because if he does 
agree it doubles the absurdity of the answer, which 
was already too big by half, and if he does not agree 
there is absolutely an end of that part of the case, 
which part is very nearly the whole. 



ACTIONS ON CONTRACTS. 119 

But the witness agreed, which lets him in nicely 
for this series of questions. 

"Were they supplied at contract price?" 

"Certainly." 

'At two shillings a ton less than you could have 
sold them for elsewhere?" 

"Yes." 

How many tons which were not supplied under 
the contract? 

Tries to make it 300, but is bound, on being gently 
squeezed, to admit eight hundred, in the month of 
November. 

"Then you presented him with at least sixteen 
hundred shillings in the month of November 
alone?" 

No answer. Could be no answer. What could a 
man say who sacrifices property belonging to his 
employers ? 

Mr. Kewsea writhed, but he didn't writhe a satis- 
factory explanation out of his witness or check the 
flow of molten lead. 

"Did the directors know that you were selling 
their coals by the thousand tons at two shillings less 
than the market price?" 

That again is an abominably awkward question and 
one would think framed expressly for the purpose 
of doubling the witness up in a heap. 

The answer will be as good as a stroke of light- 
ning, answer as he will, and it will rive Mr. Kewsea's 
case from top to toe. 

"No," says the witness after careful hesitation. 



120 ILLUSTRATIONS IN ADVOCACY. 

"Then how came you to do this?" 

/ knew the defendant ivas a friend of the direct- 
ors." 

Oh, poor man ! when you are driven to such shifts 
as that the judge gets his ej^e on you; and in that 
judical eye there is a merry, sceptical and half- 
compassionate twinkle. 

Now a little observation will tell. 

"So without the knowledge of your employees, 
you present the defendant with 75 of their money 
out of pure friendship?" 

"Pure friendship." 

Ah! Mr. Kewsea, it is hopeless; re-examination 
may be useful to set a broken leg, but when your 
witness is blown to atoms, and scattered to the four 
winds you cannot put him together again. He 
is beyond the art of surgery. 

The case is all over, but it is necessary, as a mat- 
ter of form, to bury the remains decently; so the 
defendant comes to the funeral with the liveliest 
belief that he is going to get something handsome 
out of it, one ever saw depicted on a mourner's 
face. 

What a splendid opportunity now presents itself 
for proving his own case if necessity there were for 
so doing ! He has been corroborated by the other 
side before he opens his mouth. He fills up the little 
gaps as nicely as possible ; contradicts when neces- 
sary with such circumstantiality that you can see the 
probabilities coming up all over the bed of facts like 



ACTIONS ON CONTRACTS. 121 

asparagus on a fine sunny morning after a warm 
shower. 

Let this be noted by those who think the right to 
begin at all times a very fine and safe thing, and 
who are so vigorously agile that they must needs 
jump before they come to any stile. There is all 
the difference between contradicting and being con- 
tradicted. The former process is nearly always the 
more weighty. 

What you contradict is already weakened by lapse 
of time and cross-examination. Besides which, the 
contradictor has the better opportunity of surrounding 
his statement with plausibility and circumstantiality 
from which may spring irresistible probability. 

The fragmentary evidence, elicited for the plaintiff 
by way of anticipation instead of answer, was dis- 
credited and almost dissipated by cross-examination 
before the necessity of contradiction arrived ; it was 
"torn in pieces or ever it came to the bottom of the 
den." 

So the bean-.stalk fell I 



122 



CHAPTER X. 



IN MURDER TRIALS. 



It need scarcely be said that the most important 
case that can engage an advocate's powers is that of 
murder. In defending such a charge there is a sense 
of responsibility oppressive and exacting ; a state of 
nervous excitation which no resolution can allay. 
You know that every question will be watched with 
almost painful apprehension, and silently criticised 
with ruthless severity ; and you know also that a 
single slip on your part may plunge your unhappy 
client into the fearful abyss. What wonder, then, if 
at the last moment before the trial you can scarcely 
comprehend a line of your brief, or bring your mind 
to analyse and collate the facts? 

As the jury are being sworn your sensitiveness 
and nervousness increase, and you feel almost as 
miserable as the prisoner himself. 

I cannot tell when you will " come to," but I know 



IN MURDER TRIALS. 123 

that as a rule advocates find themselves in a tolerably 
composed condition by the time the first witness 
presents himself to be sworn. This nervousness, 
let me say, is no physical disparagement, nor is it in 
any way to be regretted ; it is at most a temporary 
discomfiture, and I hope for the sake of your clients 
you will never wholly lose it. Nervousness is a 
vivifying power rather than a weakness. It adds 
fire to eloquence and quickens the most sluggish 
faculty. A dull clod of stolid humanity might 
make a good image for a tobacconist's shop, where 
indifference to passing objects is highly necessary, 
but he should never defend me or advocate my 
cause. I like a nervous advocate; an advocate who 
feels and trembles with burning eloquence. 

But it is necessary to be at home with yourself 
when the first witness comes, because, knowing 
what he is going to say, you can pretty well test its 
value by an accurate measure of his capacity, and a 
tolerable estimate of his character. Much will depend 
upon this. After you have put a question or two 
in cross-examination which have been well consid- 
ered, so that by no possibility can they injure your 
client, all will be well, so far as your mental condi- 
tion is concerned. You may now proceed to the 
end of the business (for business it has become) 
fresh and strong, as if, after a long walk on a sultry 
summer's day, you had taken an invigorating 
plunge in a refreshing stream. And how alive the 
faculties all are ! How closely you can examine 
the evidence. The smallest point is visible; the 



124 ILLUSTRATIONS IN ADVOCACY. 

most insignificant flaw in that legal chain does not 
escape your scrutinizing gaze. Nothing is too 
minute or too quick for observation. I believe you 
could almost follow a particular fly as he dodged in 
his devious flight among a crowd of his fellows. I 
cannot in the least pretend to analyse this state of 
feeling, and must leave it to medical philosophers; 
but I know that this state of intensified existence is 
experienced by some advocates, and I mention it 
because it has been so often asked "are you never 
nervous?" Nervous beyond all capability of ex- 
pression beyond all power of comprehension. 
Nevertheless, that state of intense emotional vivacity 
must be as far as possible concealed. And the very 
effort at concealment will be beneficial, for it will 
call forth the power of your will to subdue and bring 
your whole self into subjection. When once this is 
accomplished you will be braced up for the coming 
struggle, however severe and disheartening it may 
seem. 

Keep your mind upon the witness and you will 
soon forget yourself. It is self conciousness that you 
chiefly have to guard against. Under no circum- 
stances let your mind wander from the case. Think 
no evidence and no word and no emphasis or accent 
unimportant. Examine every point, however mi- 
nute, with a microscopic eye. The Court is crowded, 
but remember that to you there is no audience except 
the judge and jury, and if you so much as think 
there is, it will be at the expense of your client. 

You have a judge, a jury, an opponent, and a 



IN MURDER TRIALS. 125 

witness; that is your world, and you will find it large 
enough to engage your whole powers. Your client, 
even, is no part of it. 

In a charge of murder as hopeless as a case could 
be, counsel had to rely on argument and suggestion ; 
and even for these there was no place till he made 
room for them. I will briefly give the outline, not 
as an exhibition of any powers of advocacy, for they 
were common-place enough, but because it will show 
that an ordinary exercise 0f common sense may 
enable an advocate to make a tolerably respectable 
appearance in a bad case. 

The prisoner was charged with the murder of his 
wife. The main evidence against him was the 
deposition of the dying woman, although it was not 
a "dying declaration." Without it there could be 
no conviction for the capital offence. In most 
cases, let me remark,- according to my experience, 
depositions of witnesses who are absent or dead are 
read without much analytical examination ; this is a 
mistake in advocacy. 'It seems, as a rule, to be 
assumed that as the witness cannot be cross-exam- 
ined, the evidence must be accepted as almost 
beyond the range of criticism, at least beyond the 
power of cross-examination. 

It was obvious in the present case that the dead 
woman must be cross-examined, and cross-examined 
she undoubtedly was upon every point of her depos- 
itions. Her evidence was analyzed, her statements 
compared, contrasted, and, in one or two material 
particulars, turned in favor of the prisoner, although 



126 ILLUSTRATIONS IN ADVOCACY. 

at first sight they appeared fatal to his chance of 
escape. The unfortunate woman had deposed that 
she was in bed, had been to sleep, was a little the 
worse for drink, did not hear her husband come up 
stairs or enter the room ; that he dragged her out of 
bed and threatened to throw her out of the window ; 
that he went to a drawer, where she knew a knife 
was kept, that he came towards her and threatened 
to kill her; that she stooped while he was assaulting 
her, and afterwards found she was wounded ; that 
he then told her she had but a few hours to live, 
sent for a doctor and a policeman, and gave himself 
up. It is clear that if these facts could be handled 
skillfully there was a defence to be made, although it 
might not be successful. To acquit himself as an 
intelligent advocate was all that could be expected 
of counsel upon whom the unwelcome duty was cast 
of defending. 

In a case of murder, counsel called upon to 
defend, however hopeless the case, cannot resign 
his client to the gallows without a struggle. He 
must contest every point, argue upon every fact, 
and turn, if possible, the edge of the most fatal tes- 
timony. If he cannot base his cross-examination 
upon a reasonable hypothesis he must still cross- 
examine with some appearance of reason. He must 
lay some foundation for his speech, and he must 
address the jury logically, even though he base his 
speech on false or fallacious premises. From all 
this there is no escape; and, more than this, he 
must cross-examine upon the most deadly and damn- 



IN MURDER TRIAT-S. 127 

ing evidence. But this much he has for his com- 
fort he can do no harm in attacking facts that are 
qlearly and absolutely against him. He may kick 
these about as he likes, with the hope that some- 
thing may turn up in the scuffle. While he cannot 
exaggerate a fact he may possibly modify it. A 
skilfully asked question may produce an answer 
which will change the color of a fact. 

But there is another ground of consolation and 
encouragement. The judge is invariably with you 
in support of your weaknesses and to the aid of 
your necessities. It is the greatest glory of the 
English Bench, to my mind, that the judge, in a 
case of murder, is ever "of counsel for the pris- 
oner." He is not the Crown, but he is the crown- 
ing glory of our administration of justice. No man 
in this country can ever lose his life against the con- 
science of the judge who tries him. Strictly impar- 
tial and yet sympathetic; rigorously just and yet 
tenderly protective. An English judge trying a 
man for murder is the highest and noblest illustra- 
tion of the human character. I say this, not to 
compliment the Bench, but to encourage the youth- 
ful advocate on whom the task of defending in such 
a charge may fall. 

Let me now remind you that you must not cross- 
examine to any fact which is in your favor. Whether 
you should cross-examine to a' fact which is neither 
for nor against you depends upon your skill, your 
knowledge of human nature, and your confidence in 
yourself. If you know that you will not make a 



128 ILLUSTRATIONS IN ADVOCACY. 

mistake, cross-examine by all means, because a neu- 
tral fact may be turned to your advantage, and if it 
be ever so slightly shifted or altered in appearance 
it will form the foundation of an argument, while 
every argument in the prisoner's favor is something 
towards a verdict. Remember, too, that in cases of 
life and death arguments will sometimes neutralize 
facts. I say this from experience, and therefore 
the more boldly. 

A jury will generally, if possible, escape from 
the painful necessity of condemning a fellow creat- 
ure to death. Just indicate the way; you need not 
lead. Sometimes, it is true, they are too rigidly 
conscientious, but it is not often the case, and their 
conscience, as a rule, backs their inclination on the 
side of mercy. 

"I wish I could have cross-examined the wife," 
said the defending counsel ; something might have 
been elicited to show a quarrel, or otherwise to 
reduce the crime to manslaughter. The wish con- 
tained the germ of the defence. The deposition 
could be cross-examined, and, above all, the lack of 
opportunity of cross-examining the woman herself 
afforded the opportunity of a creditable speech. 

One argument, at all events, there was to start 
with namely, that although the poor ignorant man, 
half-crazed by excitement, had had, as appeared on 
the deposition, "the opportunity of cross-examining 
the woman," there was, in fact, no opportunity at 



IN MURDER TRIALS. 129 

att. This was a point to elicit tenderly in cross- 
examination. As the law holds opportunity in its 
strictness, there was opportunity indeed ; but what 
if the jury should think differently? What if the 
judge should even think this a point not to be lost 
sight of in an appeal for the exercise of the royal 
prerogative? Let it then for the dear life, be cross- 
examined too. Thus it came out that the prisoner 
had been hurried from his cell to the dying woman's 
bedside a few hours after the fatal wound had been 
inflicted. He was taken without notice, and with- 
out the chance of being represented by counsel or 
solicitor. It is a good point if the man is to be con- 
demned upon the evidence of this deposition, and it 
will surely stand the prisoner in good stead some- 
where, either with the jury or the judge, in fact or 
in law. In this dead case we want to extricate the 
counsel with credit as an advocate. As lie is bound 
to do something, hopeless as the case may be, he 
must do it well, if possible. So he starts with this 
cross-examination of the police-constable. 

"When was the prisoner taken to the bed-room 
of the dying woman?" 

"Was any notice given to him that he was to be 
so taken?" 

Counsel knows it must have been extremely short, 
if notice was ever given; he knows in fact that no 
notice was given, so the question is a safe one, and 
gets well answered. 

"Had he counsel or solicitor?" 

"No." 



130 ILLUSTRATIONS IN ADVOCACY. 

A question that must be answered in prisoner's 
favor. 

"Was the charge read over to him?" 

"No." 

"Was he distressed and agitated?" 

"Yes." 

Counsel knows this answer will be given. It is 
coming remarkably well, and carefully is it taken 
down in his lordship's notes. I need scarcely say 
that an advocate should ask no question which will 
not at least seem to be answered in his favor. All 
the facts, therefore, involved in these questions have 
been carefully inquired into beforehand and he knows 
what answers will be given. 

Then the witness appears, to whom the prisoner 
said, after the crime was committed 

I've killed her, Jem. I did it with this knife." 

Fearful jevidence; accurate and unimpeachable. 
How is it to be dealt with, either in cross-examina- 
tion or argument? 

In this way. First you want to neutralize the 
effect of the words, "I've killed her." Your ques- 
tion then will probably be, "Did he seem excited?" 
The answer you know will be "Yes," because you 
can see in the witness' manner and hear it in his 
tone. You get your answer, and from his eager- 
ness to give it, you know that if you ask him, with 
proper tone, "Did he seem sorry?" he will say, 
"Yes, sir; very sorry." 

From what you know as having taken place, you 
will press the question. "Did you say it could not 



IN MURDER TRIALS. 131 

be true that he killed her?" The answer is "Yes." 
"Did he say, 'Jem, it's too true?" Jem says, 
"Yes, he did." 

There's much argument to be used to the jury in 
that little word "too" an argument that there was 
no intention to kill, and if you show that, you may 
get at least a recommendation to mercy, which may 
come alike, for aught you know, from jury and 
judge. If you do, your man is saved, and that is 
the glorious triumph of your art. 

But now, you see, you have a good witness in the 
box, whom, if you handle wisely and in accordance 
with the laws that govern and reveal human nature, 
you will do something more with him yet. You 
now know that he will say anything in favor of the 
prisoner that is possible. Then ask him this 

" Was the prisoner a kind and humane man?" 

"He was, sir." 

"Was that his general character?" 

"It was." 

"Was he sober, quiet and industrious?" 

"He was." 

The next question you must put with somewhat 
more of preparation, for it is the one with which 
you desire to strike a lasting effect upon the jury 
before you sit down. 

Let me ask you "You have often seen the pris- 
oner and the deceased woman together?" 

"Yes, sir; very often " 

"In their home and in public?" 
."Yes, sir." 



132 ILLUSTRATIONS IN ADVOCACY. 

"Did he always treat her kindly?" 

"Always." 

"And seem fond of her?" 

"He was very fond of her; and there never was 
a kinder husband or a more hard-working, sober 
man." 

There is nothing else to ask. All has been done 
that is possible by question--, and probably not a 
little by effect. Not one question but has been 
answered in your favor, and you sit down with a 
look from the jury, which affords you a trifle of 
encouragement for your future progress. 

The doctor gives doctor's evidence length, depth 
and nature of wound, with the consequence clear 
and hopeless. Still, you must try for something in 
the prisoner's favor. Is anything to be done with 
evidence of this sort? 

To answer this, you must ask yourself again, 
What is your defence? What can your advocacy 
lead to? 

Your only defence is that it was not wilful mur- 
der, but manslaughter. Knowing this, can you 
cross-examine the doctor? Can you elicit that the 
wound might have been occasioned without having 
been wilfully inflicted? That is what you have to 
do, if possible, but in heaven's name take care, or 
a single question may make your defence and the 
prisoner's chance of being recommended to mercy 
utterly hopeless. You will not ask if it might have 
been done by accident. The doctor would shake 



IN MURDER TRIALS. 133 

his head, and* the most probable answer would be 
this: 

" Hardly." In all probability he would say no. 
Besides, the question is objectionable it is a ques- 
tion for the jury, not for the doctor. You must get, 
therefore, as far away as possible from this kind of 
examination, objectionable or unobjectionable. It 
is the answer you want, but it is just the very ques- 
tion you must not put if you value your reputation. 
What, then, is to be 'done? He is a clever man, 
this doctor. Can you not see that he is a humane 
one, who will help you if he can? Is he not sympa- 
thising with the prisoner? Had he not just given 
him a pitying glance ? and do you not see that if 
you ask two or three questions, the answers to which 
will neither compromise his reputation nor strain his 
conscience, he will answer as favorable as he can, 
and perhaps save the life of the wretched man. 
Doctors are almost invariably humane. 

At least you can try a harmless question or two, 
and if you cannot feel the way safely to the question 
you desire answered, you may leave him before it is 
too late. 

"Where do you say, doctor, the wound was?" 

The doctor describes it. 

"Will you point out the exact spot to the jury?" 

The doctor shows the place. 

"Now first indicate the direction. 1 see, a little 
downward, is it?" 

"Slightly." 

"Then the hand might have been in that posi- 



134 ILLUSTRATIONS IN ADVOCACY. 

tion?" (indicating that the arms might have been 
encircling the woman's body.) 

"Quite so," says the doctor. 

"As if they were struggling?'* 

"Yes." 

"Then it might have been done in a struggle?" 

"Undoubtedly," says the doctor; "and in all 
probability it was." 

That is the exact answer required, and not another 
question must be asked. Argument deducibie from 
this that it might have been an accidental wound- 
ing, or at least that the jury may legally find a 
verdict of manslaughter. If you cannot get proba- 
bility, at least endeavor to secure possibility, which 
is sometimes good enough for the jury. 

There's a good deal now that can be said. 

It is possible to attack the statement of the dying 
woman. What was her physical condition when 
she made it? What the state of her mind and 
memory ? What were the circumstances under which 
it was made ? What is the nature of the statement 
itself ? Does it disclose all that must have taken place ? 
Are there gaps in it expressions which are ambig- 
uous, conflicting, or irreconcilable? of a twofold 
meaning? of a nature that one construction may be 
in favor of the prisoner, and another against him ? 

Whenever this is the case you may have made a 
strong point, and that point may become the pivot 
upon which the defence may turn. If the statement 
does not contain a perfect narrative you have a fine 
opportunity for suggesting probabilities, and these, 



IN MURDER TRIALS. 135 

3 

as you know, have often the force of evidence itself, 
sometimes, indeed, supersede it. Evidence may be 
deceitful or false, probabilities are never the one or 
the other, although you may draw a wrong inference 
from them. Cicero says that swearing to opposing 
facts is no good in the face of the strongest proba- 
bilities. 

Again, circumstances are valuable only as sug- 
gesting probabilities ; but if there be a gap in the cir- 
cumstances you may suggest incidents, if they fairly 
arise from just inference from the other facts. Cir- 
cumstances may not lie in the sense of not being what 
they are, but they often deceive in not being what 
they seem, and in not belonging to the series of other 
facts with which they are supposed to be connected. 
The strongest chain of circumstances is only a chain 
of probabilities, and if you show an improbability 
amongst them there is a weak if not a broken link. 

In this case the moral guilt was reduced to con- 
structive murder, that is murder without the inten- 
tion to commit it, although there was an intention 
to commit another crime. 

The jury asked whether, if the intention was to 
commit grievous bodily harm and death resulted, it 
was murder. The learned judge said he was bound 
to say that that was the law of England. 

The verdict was guilty, with a recommendation to 
mercy, a recommendation which, under the circum- 
stances, developed by the progress of the case, and 
supported as it was by abundant evidence to char- 
acter, was given effect to by the sovereign. 



136 



CHAPTER XI. 



IN CASES OF ROBBERY. 



"GENTLEMEN of the jury, I must beseech you to 
dismiss from your minds all that you may have read 
or heard of this case, and come to the consideration 
of it with unbiased judgment. Gentlemen, from 
the village of Chorbakon to the village of Clodthorpe, 
where the prisoners resided, is two miles. (Assistant 
Counsel whispers something with intense agitation). 
" Oh I beg your pardon, gentlemen, I am sorry it 
is two miles and seventy-six yards." 

"Where do you measure from?" asks the judge, 
"Is there any map of this part of the county?" 

There is tremendous excitement in the "well" of 
the Court ; the other attorney and his clerk vigorously 
stare at one another for some two minutes, then 
the learned counsel stoops and asks if there is a map 
or a plan. 

"N-n-no I" stammers the assistant, "Treasury 



IN CASES OF ROBBERY. 137 

won't allow plans disallowed expenses in last 
murder case man acquitted for want of plan scan- 
dalous detriment to administration of justice wont 
allow surveyor's fees." 

"No my lord," says the counsel, "I am told there 
is not a plan, my lord." 

"It's a great pity, says his lordship, with a twink- 
ling; smile; "if you are desirous of being accurate, 
and it is necessary to go into these minute particulars, 
we ought to have a map. This is a matter appar- 
ently of yards and feet ; it may be inches for ought 
I know. Where do you measure from?'' 

"Pump to pump," whispers the assistant, with 
his hand sideways to his mouth so as to shoot the 
sound into the ear of the counsel. 

"Pump to pump," repeats the counsel. 

"Wait a minute," says his lordship, "let me take 
that ; if anything turns upon it pump to pump 
does anything turn upon this?" 

The assistant turns upon it with great rapidity, 
and says: 

"We trace them. Oh, yes, yes, we trace them, 
of course pump near the pound." 

" The case for the prosecution," says the learned 
counsel, "is that we trace them on the night in 
question along the road from Clodthorpe to Chor- 
bakon. They left Clodthorpe at five minutes to 
eleven, and the policeman who will be called will say 
that they were both under the influence of beer." 

"But surely," says his lordship, "they did not 
get so influenced by going from pump to pump; if 



138 ILLUSTRATIONS IN ADVOCACY. 

so, they are the most extraordinary pumps I ever 
heard of." (Great laughter, notwithstanding the 
solemnity of the prosecution.) 

"Gentlemen," continued the imperturbable coun- 
sel, "I shall show you that from the high road that 
leads from Clodthorpe to Chorbakon, there is a 
pathway across the field leading up to the house of 
the prosecutor where the crime was committed. 
Along that path there were footprints. The night 
was wet, and the nature of soil was such that the 
impress of a boot could easily be seen. I shall show 
you beyond all doubt that one of those footprints 
was the footprint of one of the prisoners at the bar 
(sensation.) That will be an important matter 
for your consideration. Now, gentlemen, that 
being so 

" What being sof whispers the counsel from the 
defence. 

"Please do not interrupt. I shall show you, 
gentlemen, that on the coat and trousers of one of 
the prisoners there were stains of blood (more 
sensation ) I shall also prove that when the prisoners 
were asked what time they reached home, Walker 
said half-past ten, and Shuffler said five-and-twenty 
to eleven; so you see, they gave different accounts 
of the time of their arrival. They also contradicted 
one another as to the time they left Clodthorpe, and 
you, gentlemen, will have to say whether, taking all 
these facts together, the prisoners are guilty of the 
crime with which they stand charged." 

In all this opening there was not stated a particle 



IN CASES OF ROBBERY. 139 

of evidence against the prisoners. But you could 
not stop the case, inasmuch as the judge would be 
obliged to say the opening speech is nothing, with 
which observation you might conscientiously agree, 
feeling at the same time that there was a good deal 
of it. 

Now comes - a stalwart member of the "Force," 
with a large pair of dirty, hob-nailed boots, carefully 
tied up in manifold papers and fastened with many 
strings, as though there was danger of the boots 
making their escape. There's a charming innocence 
about provincial policemen which is always amusing 
and sometimes dangerous. They invariably get 
prisoners to take them into their confidence, as 
though the police were their legal advisers or their 
best friends, and would do anything to get them 
acquitted. 

"Where was you last night, Jack?" asks the 
friendly and familiar "Robert" of the provincial 
force. 

"At Clodthorpe," answers the prisoner, whose 
name was Walker a true answer, which the constab- 
ulary cross-examiner notes against him. 

"What time did you leave, Jack?" 

"About ha-'past ten," says Walker. 

"Ha ! and what time did you get home?" . 

"About a quarter past eleven." 

"Was anybody with you?" 

"Yes." " 

"Who? was it Shuffler?" 

"Yes," says the ingenious Walker. 



140 ILLUSTRATIONS IN ADVOCACY. 

"Did he come home with you?" 

"Yes." 

"You didn't steal any fowls from Mr. Bodgers, 
did you?" 

"No," says Walker, "I didn't and never went 
near the place." 

"O," says Bobert, "but there was a robbery 
between half-past ten and half -past eleven, and 
I shall take you on suspicion. Let's have them 
there boots, I think they'll correspond. So I took 
the boots," adds the active and intelligent one, "raid 
found they co-responded 'exackerly." 

"You compared them?" 

"I did." 

"I object," protests the counsel for the prisoner; 
this man's opinion as to whether the boots co-re- 
sponded is not evidence. (Laughter). 

The judge takes a note of the objection. 

"I then went to Shuffler's father," says the po- 
liceman, "and axed him if the son was in." 

"What he axed the father behind the prisoner's 
back is not evidence," objects the counsel for the 
defence. (Laughter). 

The counsel for the prosecution submits it is: 
good quarter sessions evidence of the excellent 
quality of hearsay "something" he avers, "ac- 
companying an act." 

"Not evidence," says his lordship. 

(Attorney for the prosecution is quire thunder- 
struck ; never heard such law laid down since he was 
clerk of the peace.) 



IN CASES OF ROBBERY. 141 

"What did you do next?" 

"I axed the father for his son's coat and trous- 
ers." 

Objected to. 

"More wishy-washy than the last," holds his 
lordship. 

But the coat and trousers are somehow produced 
by the intelligent constable, and he says that there 
was a kind of "down" on the trousers. ("A 
downy observation that," whispers the usher.) But 
the policeman adds, with awful emphasis, which 
makes quite a sensation in Court, that "there's 
stains of blood or summat just like it in the trous- 
ers." There was first, sensation, and then laughter, 
in which his lordship tried not to join. 

Then he described how he cross-examined Shuffler 
when he had succeeded in getting him into his con- 
fidence. After which the policeman's turn to be 
cross-examined came, and a dire retribution it was. 

"Is it your practice to cross-examine prisoners ?" 

"Well, sir, it's yushal like to axe 'em a bit 

"Why?" 

"To see if we're to take 'em into custody." 

"But you had them in custody. "Was it to make 
evidence?" 

"It was to hear what they'd got to say.' 

"About what?" 

Robert rubs his chin. 

"What did you cross-examine them for?" 

"For the Clerk of the Peace." 



112 ILLUSTRATIONS IN ADVOCACY. 

"But hadn't you enough evidence without put- 
ting these questions?" 

That was awkward for Robert. He is blocked 
whichever way he turns, and all the friction pro- 
duced by rubbing his chin will not help him. The 
jury wait his answer, and not getting it, look up 
into his face, which is a red as the judge's gown. 
He is evidently considering, if consider he can un- 
der such circumstances, what answer he shall make. 
He wishes the counsel would repeat the question, so 
as to give him a fresh start and a little more time. 
But the advocate knows better than that. When he 
gets a witness into a hold he keeps him there, and, 
if possible, shuts the lid down. The judge looks at 
him, a rebuke in itself, and then, with monosylla- 
bilic terseness, says: 

"Well?" 

After a further pause Robert is asked: 

"What did the Clerk of the Peace want with it?" 

"For a remand, I s'pose." 

' 'Was there not enough evidence unless you made 
some?" 

"I s'pose there warnt, sir, if you come to that." 

"Did the clerk say so?" 

"Yes, sir." 

"Then, wanting it for evidence, did you say, 
Now, Jack, my friend, at present there is no evi- 
dence against you, but just answer me a question or 
two, and I'll soon make some. I will write down 
your answers so that there will be no mistake ?' Did 
you say that by way of caution ?' ' 



IN CASES OF ROBBERY. 143 

"No, sir." 

"Do you know that the learned judge is not al- 
lowed to put a question to these men?" 

"Don't know, sir; s'pose a judge can do what he 
like." 

"Did you make a note of the conversation?" 

"No; but the Clerk of the Peace did." 

'Is he the solicitor for the prosecution?" 

"I believe so." 

The policeman gladly enough left the box, and 
as there was no evidence the prisoners were acquit- 
ted. Robert's opinion that there was a correspon- 
dence between the boot and the footprint was worth 
nothing. There might have been another boot of 
the same make, or another person might have worn 
the prisoner's boots on that night. Besides which, 
the policeman had taken the shoe belonging to the 
other prisoner, and that not only did not correspond 
with the impression on the ground, but differed en- 
tirely from it. The down on the trousers was no 
more evidence that the wearer had stolen a fowl 
than a button off a policeman's coat in the posses- 
sion of little boy, would be evidence that he had 
swallowed a constable. 



144 



CHAPTER XII. 



ILLUSTRATIONS OF A MAN CONDUCTING HIS OWN CASE. 



In all cases tact and judgment are indispensable to 
success. What may be called "slogging advocacy," 
is of little use against art. To bring out the right 
point at the right time, and to call the right witness 
just when his evidence will be most effective, are 
often of vital importance to your client. To ar- 
range your evidence, and to produce your arguments 
in due order, is as necessary in a cause as the 
proper disposition of troops on the eve of battle. A 
mob is no use to a disciplined army, nor is a con- 
fused mass of tangled evidence likely to be effective 
against the well ordered case of your opponent. 
Although your cause may be right, the other will 
seem so. And juries generally, like other men, act 
upon what seems to be, rather than what is. 

The illustration I am about to give is from hum- 
ble life ; and the advocacy to which I direct atten- 



CONDUCTING HIS OWN CASE. 145 

tion is not the advocacy of a professor in the art. 
It is a defence "in person;" but the "person" 
shows that he possesses just that knowledge of 
human nature which the professional advocate may 
sometimes lack. Low life, no doubt, is revolting to 
the fastidious mind, but at the Bar you will do all 
the better by having some acquaintance with it. 
Human nature is not the monopoly of the high-born, 
the educated, or the wealthy. You will find a good 
deal of it lying about the slums ; and if I mistake not, 
you will perceive a trace of it in the following case. 
I am not about to give an instance of brilliant ora- 
tory or ingenious cross-examination. The lesson is 
a lesson in tact and judgment ; in the mode of deal- 
ing with evidence, and, albeit, uncouth and rough, 
in the manner of disposing of its effects. It will 
show you, indeed, by a rude and unpolished example, 
how a case should be handled. I suppose a pauper's 
body would be as good for anatomical purposes as a 
body which died worth a million. The same kind 
of nerves, the same kind of tissues, bones, limbs, 
muscles, and organs. 

But will students condescend to learn advocacy 
from a coffee house keeper? And if not, may I 
enquire why not? Let us recollect that advocacy is 
not fine language. You may quote Cicero, and make 
a bad speech, or you may make the most tremend- 
ous oration, and not know how to cross-examine. 
A good case made against you may be hopelessly 
fatal unless you know how to deal with it. Is it pos- 
sible then, that an illiterate, uncultured coffee-house 



146 ILLUSTRATIONS IN ADVOCACY. 

keeper can tell us how to deal with the points of a 
case so as absolutely to destroy them? What does 
he know of advocacy? He knows nothing in the 
artificial sense; but having a knowledge of men, he 
stumbles over the facts made against him and 
tramples them out of all shape and consistency. He 
was not present when the case began, and so it was 
opened as undefended. It looked an easy winning 
case, and one for considerable damages. The 
plaintiff was young and pretty : you would almost be 
inclined to give her five-and-twenty pounds for 
being so pretty. Her looks deserved it. I mean that 
a fascinating plaintiff is almost sure to win her way 
with the jury. Juries are so human. And the 
appearance of a plaintiff or a defendant, if of the 
weaker that is the stronger sex is always a factor 
with which the advocate must reckon. The learned 
counsel opened the case remarkably well. There 
was not a word too many, nor a point too few. He 
was a modest junior, and assumed no airs; at- 
tempted no jokes and ignored all attempts to 
evoke sympathy. 

The pretty plaintiff gave her evidence in a very 
nice, calm, unaffected way. Told of the promise 
and the breach, in such simple manner that the art- 
less conduct of the defendant spoke for itself. It 
was apparent to all who heard her, especially to the 
jury, that a man who would not marry such a loveable 
and loving creature when he had the opportunity 
ought to pay for his folly. 

Unfortunately, just as the judge was about to sum 



CONDUCTING HIS OWN CASE. 147 

up, in came the defendant. What a marvellous sen- 
sation was produced by his appearance ! And what 
an insight into human nature he must have had ! He 
was unshaven, ill-clad, I should say unwashed, and 
was got up (without appearing to be so) in the most 
unattractive manner you can imagine. His appear- 
ance quite lowered the plaintiff in the eyes of every- 
one in Court. If the jury would give something for 
her beauty they would certainly award nothing for 
her taste. Damages decreased therefore on the view 
of the defendant, as much as they had gone up on 
that of the plaintiff. So they are now on a level. 
That was the first good point the defendant made. 
I am quite aware that counsel could not have made 
this poiut for him so effectively ; but he might have 
made it nevertheless. How? will be asked how 
could he show what kind of man the defendant was ? 
I answer, by cross-examination. If he could not 
produce the original, he could exhibit a picture of 
him, that is, if he were skilled in the art of present- 
ing a picture by cross-examination. He certainly 
could not do it by bullying the plaintiff, although he 
might have considerably increased the damages. If 
you are not an artist, you need not smudge every- 
body who comes into the witness-box with a tar 
brush and think you are touching up their complex- 
ions that is not the way to make yourself look 
beautiful, even by contrast. But now comes a sec- 
ond view of the defendant. You can perceive that 
his knowledge of the points of his case is perfect 
and that he knows how to deal with them. You will 



148 ILLUSTRATIONS IN ADVOCACY. 

also see that he puts them artfully if not artisti- 
cally; and forcibly, although not scholarly. He has 
no elocution and no oratorical powers as the learned 
impute oratory ; but he can speak so as to persuade, 
and argue so as to convince two good qualities, I 
apprehend. He can cross-examine, too, although he 
has not had an hour's practice. He asks just the 
questions that are likely to produce favorable answers. 
He understands what he is doing, and why he is 
asking every question that is put. He knows what 
is wanted, and his principle object is to convince the 
jury that the occasion of the breach of promise was 
not his; that although he broke the promise, it was 
in consequence of the conduct of the plaintiff 1 herself, 
for he was anxious to marry her. His object was to 
reduce the damages to a minimum. Now, observe 
how he does it. You may learn it from this natural 
advocate as you may learn what motions are neces- 
sary in swimming from watching the evolutions of a 
frog in the water. 

And first, let me say, he did not cross-examine as 
to the plaintiff's character, nor did he make any 
imputation upon it. The common trick too often 
resorted to of trying to blacken your opponent's 
reputation to the infinite damage of your own client, 
was not the coffee-house keeper's way of advocating 
his cause. Wherever he had learned it he knew 
better than that. Secondly, he did not deny the 
promise or the breach; he was not foolish enough 
to attempt the impossible. 

I have heard advocates say never admit anything. 



CONDUCTING HIS OWN CASE. 149 

The coffee-house advocate knew better. In civil 
causes, whatever cannot be denied had better be 
frankly admitted, and for this principal reason, that 
the proof may damage you more than thefactpvouzd. 
It is often the evidence and the surrounding circum- 
stances that you have to fear more than the thing 
itself. They may aggravate the default and exag- 
gerate it, distort it or make it look infinitely worse 
than it is. 

The student, no doubt, is thinking, "What can 
this man know of cross-examination?" Let the 
student put the same question to himself. We shall 
see. He cross-examines for the purpose of showing 
what led to the breach. There could not be a better 
purpose, and it was one which involved a reason so 
natural that the jury could see it at a glance not 
only see it, but calculate it in pounds, shillings and 
pence. The reason why he broke off the engage- 
ment was coldness on the part of the plaintiff, and 
when the jury looked at her and then looked at the 
defendant, it was manifest that she must turn cold, 
even if she did not freeze. How could such a man 
inspire warmth? His looks and manner were below 
zero ever so many degrees. No pretty girl twenty 
years his junior could warm herself up to a matri- 
monial and enduring heat. 

Notwithstanding all this, he was, I believe, a most 
respectable, well-to-do tradesman, but he was a con- 
summate actor and a good advocate, although he 
made pretensions to neither character. 



150 ILLUSTRATIONS IN ADVOCACY. 

Now comes another point. He asks about a letter 
in which he had complained of her coldness. 

"Had he given notice to produce?" asks the 
counsel for the plaintiff. 

"Oh, no, my lord! I aint acquainted with the 
forms of law. If I had had the means of employ- 
ing counsel, I should not have been in this predica- 
ment." 

No; but he might have been in a worse. So he 
says if he had but been able to procure legal assist- 
ance he would have made her produce a letter which 
would have shown the sincerity of his affection and 
his complaint of her coldness towards him ; three 
good points in a cluster, but distinct and clear as 
windows with a light behind them. 

"But you shall have every opportunity," says the 
learned judge. "You shall not suffer because you 
you cannot afford to have counsel." 

I presume the reader perceives how the defendant 
is getting on in the way of reducing damages, and 
probably believes he could not have done it better 
himself. 

"Thank you, my lord,*' says the poor man most 
reverently. "I couldn't afford to pay my solicitor 
and so he wouldn't go on with the case." 

"Very well," says the judge, "what is the date of 
the letter?" 

"It was while she was away in Cumberland, my 
lord. It would be about March. I wrote to ask 
her when she was going to return, as I had five 
children, my lord, and no one to look after them." 



CONDUCTING HIS OWN CASE. 151 

"Five children!" exclaims his lordship, with as- 
tonishment. "Why, how old are they?" 

"One is seventeen, my lord, and the youngest is 
two." 

Damages are certainly lessening. This is quite 
an unexpected style of advocacy, but so effective 
that no counsel could have surpassed it by any man- 
ner of eloquence or cross-examination. These five 
children come in just at the right moment, and the 
jury see them hungry and ragged. 

"Have you got that letter, Mr. Jones?" asks his 
lords-hip. What a fuss there is about that letter, to 
be sure ! 

"Oh I yes, my lord; here is is. It shows the 
promise clearly. I read part of it in wy opening." 

"Yes, but now the defendant is going to read the 
other part. ^ 

There it was, truly enough, a good, honest, 
manly letter, asking the plaintiff when she was go- 
ing to return, and stating that he was anxious to 
get married as soon as possible, as his business was 
going to rack and ruin. He could not afford to 
have a housekeeper, and there was no one to look 
after his five "motherless children." 

"What do you make of that?" asks the judge. 

"My lord," says the defendant, "1 want now to 
show what answer she returned to that letter which 
was the reason of my breaking off the engagement 
which I confess I did, and believe any man would 
do if he received so cold a letter as this here." 

The letter was handed up, and certainly it did not 



152 ILLUSTRATIONS IN ADVOCACY. 

breathe any very warm sentiments. It was a busi- 
ness-like affair altogether, but still did not warrant 
a breach of the promise to marry. Damages still 
decreasing, that is clear, because not much injury to 
feelings feelings not up to anything like matrimo- 
nial point as you would expect in one so pretty the 
letter, indeed, reads somewhat pert ; she is not quite 
a scold, but a very indifferent lover evidently. 

"Very well," says the judge, "but now then you 
must pay, it is a question of damages only." 

Then the counsel cross-examines as to the defend- 
ant's position, so as to show how much pecuniarily 
the plaintiff has lost, that being apparently her only 
claim now, as injured feelings are no longer a mar- 
ketable commodity. The defendant, however, is as 
good at answering questions as he is at asking them. 

"Now then," says the counsel, "You live in a 
house of 120 a-year rent, don't you? 

"I don't deny that," answers the defendant, 
"And that is what makes me so poor; if I was the 
landlord it would be different." 

That seemed to strike the jury as a common-sense 
argument. It is one thing to have to pay and 
another to have to receive 120 a-year. Heavy rent 
does not usually make a tenant wealthy, and of this 
opinion seem his lordship and the jury. 

"And more than that," says the defendant, 
"They've nearly doubled my rent thi* last year, 
and that has nigh doubled me up. I could hardly 
get a living before, and now I don't know how lam 
to live. The business is worth nothing." 



CONDUCTING HIS OWN CASE. 153 

"But you've got some other property, haven't 



you 



"Yes I have. I've got these here pawn tickets," 
producing about a dozen. 

There was a peal of laughter at this stroke of 
business. Pawn tickets may be a valuable property, 
but they don't usually indicate affluent circum- 
stances, especially when they relate to a watch, a 
great coat, a silver buckle, an arm chair and a hat. 

"Do you mean to swear, sir, that you have no 
money?" 

"I do," says the witness; "they thought I had." 

"Why do you say that?" 

"Because they was always trying to get some out 
of me." 

"Who do you mean by they?" 

"Why this plaintiff and her father, the old gen- 
tleman who was a witness." 

"How did they try to get your money?" 

"They took me to a place where they had got an 
old painting about eight feet long by six, and wanted 
me to give 700 for it. As I told them, I hadn't 
got 700 pence, and if I had what was the use of a 
picter of that size to me? What's a man in my 
position want with one of these here old masters." 

"Now sir," asks the counsel, "do you mean to 
swear that you have no money in the bank? I warn 
you she has sworn that you told her that you had." 

"Its quite right, my lord, I did tell her, and here's 
my banking book, and your lordship will see that I 
have put a few shillings a-weekin the saving's bank 



154 ILLUSTRATIONS IN ADVOCACY. 

for the purpose of paying my rent, and hard enough 
it is to scratch it up." 

His lordship looks at the book and finds that he 
has never had more than 7 10s. in the bank. Not 
a great amount certainly ; and so far as one can see 
up to this point, if the marriage had taken place, 
the lady would have acquired no very affluent position 
out of five children, a number of pawn tickets, 120 
a-year rent, and a few shillings in the saving's bank. 

'Now tell me, did you not break off this engage- 
ment because you were going to marry a widow with 
900?" 

Here there was great laughter in which the de- 
fendant joined, and then answered: 

"I only wish it was true. I should very much 
like to marry a widder with 900, or for the matter 
of that I'd take less. I wouldn't keep a coffee shop 
long." 

The imaginary "widder" having been thus 
promptly disposed of, there remained one other point 
to cross-examine this prosperous defendant upon. 
If he possessed a really flourishing business the fair 
plaintiff had lost a home of some value, and the 
measure of damages must be estimated thereby. To 
ascertain then the estataof the defendant and his ca- 
pacity to pay damages is the next object of the plaint- 
iffs counsel. As a rule, I think this part of the busi- 
ness dangerous to venture upon except you do it in the 
most general way. If you enter into details you 
may be sure the defendant has prepared himself for 
every question. The position of a man as a general 



CONDUCTING HIS OWN CASE. 155 

rule is a better test of his capacity than the items of 
his expenditure. If you get the style of the man 
the jury will apportion his income to it ; but if you 
try to get at his income you may find that he places 
himself on the brink of ruin. This proposition of 
course does not apply to fixed and determined posi- 
tions, which go either with or without proving, and 
concerning which you may make your choice with 
safety. 

"Now," says the counsel, "what are your 
takings?" f 

"I have not taken much lately," says the witness, 
producing a dirty red memorandum-book. 

"We have been told you take 7 a day?" 
It was hardly a question, but it did duty as one. 

"I suppose the old gentleman told you that; it's 
just like him." 

This answer provoked much laughter ; the learned 
judge himself could not resist. For a time it was 
doubtful what "old gentleman" was meant, and 
everyone supposed it was the particular "old gentle- 
man so often referred to by persons who have a 
lively faith in his personality. It really referred, 
however, not to the "Father of Lies," but to the 
father of the plaintiff, who was shown by the defend- 
ant to have been a very active agent in the promotion 
of this breach of promise/ But the dirty book is 
produced, and the defendant is asked "what he has 
got there," generally a dangerous question enough, 
for, like a needle, it often draws with a thread of 



156 ILLUSTRATIONS IN ADVOCACY. 

evidence that stitches the parts of a ragged case 
together. 

"ICs an account of my takings" says the melan- 
choly creature ; and the book being handed to the 
judge shows 7 a-week instead of that amount per 
diem. A very carefully kept book it was, not con- 
cocted as you see, and it extended over several 
months, as long at least as the legal proceedings had 
been on foot. The witness then goes into the cost of 
bread and butter, coffee and general expenses, not 
omitting the milk ; and there being a milkman on 
on the jury, he knows that that is an important item, 
water it as you like, in coffee-house business? so 
that on the whole the wonder is how the man can 
support his five children, and why the whole family 
is not in the workhouse, or singing doleful songs in 
the streets. 

What is to be done? the more you cross-examine 
this witness the worse the case looks, so the learned 
counsel wisely leaves him to my lord and the jury, 
weary of a hopeless task. It's like pushing a jibbing 
horse uphill. 

My lord tells the jury that the proper measure of 
damage is what the plaintiff has lost by not becoming 
the wife of the defendant (and as Roscoe puts it, 
"the affluent circumstances of the defendant are 
evidence on the question of damages"); his lordship 
also says the injury to the plaintiff's feelings may be 
considered. Two items therefore to be assessed. 

The jury consider these "affluent circumstances," 
and this "injury to the plaintiff's feelings," and give 



CONDUCTING HIS OWN CASE. 157 

effect to the conclusion they arrive at by the follow- 
ing verdict: 

"My lord, we finds a werdick for the plaintiff with 
40s. damages, and thinks as how she have had a 
werry narrer escape, and is well out of it." 

Judge agrees with the jury, and does not allow 
costs, which was as bad as if the solicitor for the 
plaintiff had been the defendant and lost the verdict. 
This was the best defence to an action for breach of 
promise of marriage I ever heard. If you wish to 
cut down damages this coffee-house keeper has shown 
the line to take. A chorus of voices says "of 
course 1" But it is by no means of course ; not one 
in advocate twenty could have done it. Most of 
them would have tried to break down the plaintiff 
on the promise or breach, or have endeavored to 
show that the man was justified in breaking the 
engagement on account of the character of the plaint- 
iff, and this, as a recent case has proved is the most 
dangerous of all defences. It cannot be too frequently 
impressed upon the mind of the advocate leave 
character alone unless it is material to the issue or 
fatal to the credit of a witness. 

The usual mode of dealing with this case would 
have been to fly at the plaintiff with the object of 
showing that she was unworthy of belief, and that 
she released the defendant from his promise. Some- 
body's character would have been attacked, perhaps 
her father's, or mother's, or her grandmother's, or 
the solicitor's, or even the conduct of the plaintiff's 
counsel. Anything and anybody rather than the 



158 ILLUSTRATIONS IN ADVOCACY. 

issue. Usually an eloquent speech is made against 
the policy of permitting such actions. But the 
judge having to sum up after the eloquent advocate 
does not permit the main issue to be shunted, and 
the jury to be trailed along by a false scent on a 
fool's errand. There may be differences of opinion 
about the advisability of abolishing actions for 
breach of promise; but the question for the jury is 
whether there has been a promise and a breach, and if 
so what damages. The jury are not a public meeting 
to carry resolutions for the amendment of the law, 
but to take the law as it is from the judge and en- 
force it by their verdict. 



In the trial of Rush, in 1849, for the murder of 
Mr. Jermy, the prisoner defended himself. The 
principal witness against him was Emily Sandford, 
who had been governess to his daughter. This 
witness he had seduced under a promise of marriage. 
She gave material evidence for the crown as to 
Rush's absence from his home at the time when the 
murder was committed; also as to his conduct on 
his return, especially his telling her, should she be 
asked how long he was absent on the night in 
question, to say about ten minutes. Almost every 



CONDUCTING HIS OWN CASE. 159 

question the prisoner put in cross-examination was 
dangerous, if not fatal. But among others he asked 
this, with a view to showing enmity and spite on the 
part of the witness : 

"Have you not told me you would make me 
repent of not keeping my promise to make you my 
wife after the birth of the first child?" 

This question was damaging in every way, even 
without an answer, and consequently the worst form 
of question that could be put. It was based upon 
the assumption that the witness had been swearing 
falsely against him for the purpose of taking his life, 
and yet it assumes that she will not commit perjury 
in answering his question. In either view her answer 
must be against him ; but if there had been reason 
for putting it, still it ought not to have been put. 
If she ever threatened him in the manner alleged, a 
skillful cross-examination would have elicited the fact 
without the question; and long before any such 
question was necessary, would have made it unnec- 
essary by her manner in the box. It is the worst 
form of cross-examination that simply obtains a 
denial to what you wish. But this question drew 
more than a mere denial. This was the answer the 
witness gave with solemn emphasis, and amid pro- 
found sensation in Court: 

"I told you when you broke your promise, that 
before you died you would repent of not keeping 
your word. I told you that you would never pros- 
per after breaking such a promise. You said I had 
made you a reformed man, when I charged you with 



1GO ILLUSTRATIONS IN ADVOCACY. 

being unfaithful, and you promised solemnly to 
marry me." 

These were a"wful words, and their reproachful 
accents must have been remembered by the pris- 
oner with fearful cleainess, while their prophetic 
truthfulness was rendered plain in that dreadful 
moment. 

Mr. Baron Rolfe, in sentencing the prisoner, 
made these observations : 

"In the mysterious dispensations of the Almighty, 
not only is much evil permitted, but much guilt is 
allowed to go unpunished. It is perhaps, presump- 
tuous, therefore, to attempt to trace the finger of 
God in the development of any particular crime; 
but one has felt at times a satisfaction in making 
such investigations, and I cannot but remark that if 
you had performed to that unhappy girl the promise 
you made to her, the policy of the law which seals 
the lips of the wife in any proceeding against her 
husband, might perhaps have allowed your guilt to 
go unpunished." 



161 



CHAPTER XIII. 

PEEPING INTO A JURYMAN'S MIND. 



It will sometimes happen during the progress of a 
case that a juryman is anxious to put a question. 
He is most frequently, with great judicial politeness 
"shut up" by the judge, who tells him that "by- 
and-by" if he pleases, when the learned counsel has 
finished, if there is any question he would like to put, 
&c. , &c. The poor juryman, who probably has never 
been in a jury-box before, feels awfully snubbed, 
although snubbed he really is not, and withdraws as 
completely within himself as a snail within its shell 
on the approach of danger, and the question is either 
forgotten or the juryman will run no further risk 
Whenever this happens be careful to remind the 
judge that the juryman desires to put a question. It 
may be against you, or for you, or altogether irrev- 
elant. , In any event you will gain something from 
it you will get at least a peep into the juryman's 



162 ILLUSTRATIONS IN ADVOCACY. 

mind, and a peep through the smallest chink has 
often revealed strange things; they may be only 
small matters twisting about in the mental kaleido- 
scope of the juryman's cranium, but they may be 
very important for you to know, nevertheless. I 
have seen cases won by these little sudden peeps. 
Of course, the advantage is equally great, you will 
say, to the other side. My answer is, that depends 
upon circumstances. Some men will glance in at a 
window, and see only their own reflection. Others 
will look in and see people inside, and learn a good 
deal of what is going on. Sometimes you will learn 
that the juryman is misunderstanding the drift of 
the whole case, bothering his poor head about some 
totally irrelevant matter ; in any event, it will be 
useful to know what is passing in his mind. 



163 



CHAPTER XIV. 



SEVERAL MODES OF CROSS-EXAMINATION. 



LET us now take an example of a bad and a good 
cross-examination ; and I would like the student to 
ask at every question herein set down, whether or 
no he can determine for himself its quality. It will 
afford some test of his knowledge of the art of 
advocacy if he can. For I may say that every 
question I shall give has been put over and over 
again, even by leaders, without any definite calcu- 
lation as to its value, or any knowledge of its 
practical effect, either on the mind of the witness 
or the jury. 

Let us suppose a man to be charged with having, 
three or four years ago, at a country fair, purchased 
a horse, and paid for it with a bad cheque. The 
following cross-examination will disclose all the facts 
that are necessary to be known. The whole issue 
is as to the identity of the prisoner. 



164 ILLUSTRATIONS IN ADVOCACY. 

Question No. 1. "Had you ever seen the man who 
bought your horse before that day?" 
"No." 

2. "How long were you with him on that day?" 
"Several hours." 

3. "Were any other people present?" 
"Yes, many." 

4. "When did you next see the man after that 
day?" 

"Not till I saw him in the police station. 

5. "Did you know him directly or did you pick 
him out?" 

"Knew him directly." 

6. "How do you know him?" 
"From his appearance." 

7. "And will you undertake, upon your solemn 
oath, to swear he is the man?" 

"I will." 

The first question is right, the second wrong, the 
third nearly right, the fourth right, the fifth, sixth 
and seventh utterly wrong, and the man must be 
convicted! 

The first question is right, because the defending 
counsel knows what the answer will be, and he must 
elicit it. 

The second is wrong, because he does not know 
what the answer will be, and the witness will under- 
stand from its form how to make his reply as tell- 
ing as he can against the prisoner. 

The fact which the counsel, however, was desir- 
ous of eliciting was all important to the defence, 



MODES OF CROSS-EXAMINATION. 165 

and should have been got out of the witness in 
favor of the prisoner and not against him. 

The third question was nearly right, because it 
was better to place the man to be identified among 
a crowd ; but it ought to have been put in a less 
direct form, for fear the answer should be against 
the prisoner. The witness evidently answered it as 
he did, because he thought it told most strongly in 
favor of his own accuracy and against the prisoner. 

Tbe fourth question was right, because no other 
answer was possible, as was known to the counsel, 
not only from information communicated by the 
prisoner himself, but for numy other obvious 
reasons. 

The fifth was wrong, because it would be sure to 
be answered against the prisoner, and could not, in 
the form in which it was put, be answered in his 
favor. 

The sixth was wrong, because it gave the prose- 
cutor the opportunity of giving reasons for his belief, 
making his belief look like a fact. 

The seventh also was wrong for the same reasons, 
and also because it was a mere repetition of what 
the prosecutor had sworn in chief. It was not 
cross-examination at all, and could only confirm the, 
evidence already given. And, again, it was only 
asking the man whether he would undertake to do 
something. So that altogether it was as bad as all 
the other bad ones put together 

Let us now see another style of cross-examina- 
tion to the same witness. 



166 ILLUSTRATIONS IN ADVOCACY. 

No. 1 is asked. 

Instead of No. 2, let us ask where ho saw the 
man. Then we shall get the fact, without asking 
for it or seeming to desire it, that the man was with 
other people ; and the crowd in the fair or in the pub- 
lic house will come out as nicely as possible. 

Safely, then, may be asked what time it took 
place. The witness knows nothing of your object, 
and answers you to the best of his belief, like a lamb 
bleating for its mamma, "Twelve o'clock.'* 

But how, then, having got twelve o'clock, shall 
we keep them together several hours ? By no m cans . 
You wonder what time he left the fair to return to 
his home; and, not knowing what you are driving 
at, and that presently you are going to do a little 
mental arithmetic and reduce everything to min- 
utes, the witness tells you that he didn't stay long 
after the "ornary" which took place at one o'clock. 
He is already afraid of making himself drunk, you 
see, and away he goes home, as sober as a judge, 
"about two to ha' past." 

You see, you don't want the answer "several 
hours;" you will, if you are careful, reduce it to 
several minutes without a single question with that 
, apparent object. 

What time had he finished selling? 

He sold the last pen just before one, all in good 
time for the "ornary." 

Things fetched a goodish price that day, he tells 
you, and you get out that" towards the latter part of 
the morning the market got a little brisker like, and 



MODES OF CROSS-EXAMINATION. 167 

he, being as shrewd a man as any in the place, had 
reserved a smart deal of stock till the last, so that 
between eleven and one he was pretty busy like. And 
there not being much chaffering about the price of 
the horse, as you know there seldom is when a rogue 
buys who doesn't mean to pay for it, the thing's 
done, bless you, and the prosecutor too, both by the 
thief and your learned self, in a few minutes; 
before he has so much time as to observe whether 
the man had blue or grey eyes, a brown neck doth or a 
white one, a light grey overcoat or a shooting jacket : 
how could a man after three years, he plaintively 
observes, almost weeping, be expected to give the 
color or shape of a man's coat, or even tell whether 
he had brown or grey whiskers or any whiskers at all? 
he couldn't tell you the color of his own necktie or 
coat on that day. It's not to be expected. 

" Uhpossible," he says "my lord.'' 

Poor soul he dosn't think what he's doing, and 
that he is being turned into as good a witness for the 
defence as it is possible to have. The learned coun- 
sel knew full well that there was not a question he 
put to this witness that he could answer, try as he 
might. And further, he has not put one question 
which, answer as the witness liked, or refuse as he 
liked, but would have been in the defendant's favor. 

Let us take any one. Suppose he had said the 
man who cheated him wore a beard, but added that 
he had shaved it off since. His case must have been 
over, if you couple that fact with another fact, 
namely, that he had never seen the prisoner before 



168 ILLUSTRATIONS IN ADVOCACY. 

or after the occurrence. So of every question ; the 
answer, if near the mark, would have been a guess, 
and if he could not even guess, his evidence was 
destroyed. But if you want to pound the poor man 
still more it is possible to do so. Just try the effect 
of this upon him: 

Can you tell me, without looking at the prisoner, 
what is the color of his eyes? 

He certainly cannot; and although he turns in- 
stantly to the prisoner, the prisoner as instantly 
turns his eyes modestly to the ground, so that no 
information is to be got from that quarter. Now 
then, as you know perfectly well that the witness has 
been trying to get a sight of the prisoner's eyes, and 
had not directed his attention to his necktie or waist- 
coat, you may safely and suddenly ask him about 
either or both of those articles, and you will find that 
he cannot answer you. Notwithstanding all this, if 
you really desire to show how utterly worthless such 
evidence of identity is, you may do a great deal more 
than you have yet done. But what I am now about 
to indicate requires some skill and judgment in 
framing your questions. 

Be careful you do not get an accurate portrait of 
the man made up partly from his own clumsy de- 
scription to the police, and partly by the description 
of the man to the witness by the police. 

I cannot put down questions here which would be 
a safe guide, because I should like first of all to see 
the witness, for it would depend upon the kind of 
man he was as to what question should be put first 



MODES OF CROSS-EXAMINATION. 169 

on this subject. Further, I should like to know 
from the police-sheet containing the report of the 
robbery (and which is not evidence unless you make 
it so) what kind of description was given of the thief 
by the witness immediately after the swindle, if any 
description was so given. But be sure of this, that 
if he has given one which does not tatty with that of 
the prisoner, it will ensure an acquittal. 

I need not add that a cross-examination of the 
kind indicated, when the case depends entirely upon 
the prosecutor himself will be certain to break him 
down and obtain for the swindling rascal the "ben- 
efit of the doubt," which is a doubtful benefit to 
society, notwithstanding society's love of fair play. 

By way of contrast to this effective cross-examin- 
ation, I will give an illustration of one not so effec- 
tive. It will show the danger of being too minute 
and circumstantial, the usefulness of a judicious re- 
examination, and how such re-examination may be 
admitted through a very small opening. 

Let it be remembered that this is another instance 
of the advocacy of leading men, whose experience 
seems to have innured them to danger, showing, as 
I take it that something more is required in advo- 
cacy than mere practice to make perfect. The cir- 
cumstances arose in a case where the validity of a 
will was the question in dispute. On the one side 
the testator was alleged to have been perfectly capa- 
ble, and by the other side was perfectly incapable, 
of understanding the nature of the act he was doing. 



170 ILLUSTRATIONS IN ADVOCACY. 

Eminent advocates and hard-swearing witnesses 
abounded on both sides. 

One witness swore that the testator, in his opin- 
ion, was of sound mind, memory and understanding. 
He gave his evidence fairly, and seemed desirous of 
establishing the will. 

He was then cross-examined in the following 
manner: 

"I believe you were related to the testator, were 
you not?" 

"I was." 

"Nearly related?" 

"Yes." 

"And would have an interest in the will if estab- 
lished?" 

No objection seems to have been taken to this 
question, which was very near speaking to the con- 
tents of a document which was not read. 

The answer was "Yes." 

If the advocate had asked nothing further, it was 
a good point made, and certainly would have mate- 
rially affected the value of the evidence as to the 
soundness of the testator's mind, because the witness 
had a direct interest in establishing the will. But in 
spite of the remonstrance of his junior, the leader 
continued his cross-examination, and asked 

"Would you take as much as ten thousand pounds 
if the will were established?" 

"I should," said the witness; and, as the news- 
papers reported, "there was profound sensation in 
Court." 



MODES OP CROSS-EXAMINATION. 171 

Of course, if matters could have remained here, 
the profoundly of the sensation would have been 
permanent ; but the watchful counsel on the other 
side quietly remarked: 

"Just one question. Have you make a calcula- 
tion as to what you would be entitled to in the event 
of an intestacy?" 

"I have." 

"What would it be?" 

"As next-of-kin I should be entitled to fifty thou- 
sand pounds. 

Cross-examination not effective, except for the 
purpose of letting in this fact, which let in the will, 
and also let in to a considerable depth the cross-ex- 
aminating counsel. This almost seems incredible; 
one of the frequent characteristics of truth. There 
are so many mistakes made by experienced counsel 
that one sometimes doubts whether practice really 
makes perfect: if it do not, I will affirm that care- 
ful study of human nature will bring you much 
nearer to it than any amount of so called practice, 
which often is nothing more than physical exercise. 

Merely shooting at a target is not much, but the 
careful study of the rifle, the amount of pressure 
required on the trigger, the direction and force of 
the wind, the state of one's nerves on the occasion, 
the clearness of the atmosphere, the "pull," and 
other trifling matters, are a good deal, and no one 
will excel unless he study them. 

A man by nature may be an advocate ; he cannot 
become one by practice; but he may perfect his 



172 ILLUSTRATIONS IN ADVOCACY. 

natural gift by careful study of the motives that 
touch the springs of human action. You may not 
be able to learn much advocacy in a Court of Justice, 
but you may learn a good deal in the market-place, 
on the race-course, and at country fairs, especially 
"Goose Fairs." 



CROSS-EXAMINING TO THE CREDIT OF A WITNESS. 

This is always a dangerous, and too often a disas- 
trous and cruel performance. None can do it grace- 
fully or approvingly. It exhibits generally a weak 
case and a malignant mind. For, mark, whatever 
questions are put are not the inventions of the pro- 
lific genious of advocate, but are conveyed to his 
mind by the client, who will ultimately, if they fail 
to demolish the character of his opponent, have to pay 
for the luxury of them. The advocate is responsible 
for the use he makes of his instructions, not for the 
instructions themselves. 

"How is that revelant, Mr. Jones?" asks the 
judge by way of remonstrance, as Jones is unlimber- 
ing his Gatling for the purpose of pouring it into the 
witness's character, loaded as the fieldpiece is with 
all the errors and supposed errors of the witness's 
past life that could be collected or invented against 
him. 

"Oh, my lord," says Jones plaintively, as though 
he were unkindly interrupted in the performance of 
an act of mercy: 



MODES OF CROSS-EXAMINATION. 173 

"It goes to the witness's credit." 

O 

"Oh," says his lordship, and then the jury just 
tap the ledge of the desk with the tips of their fin- 
gers and a good deal of meaning there is in those 
taps: take care, Jones, the gun may burst I Jones 
might have added, "My lord, at present my client 
has only succeeded in breaking up the witness's 
home; he is now about to ruin his character: it may 
be to make his children hate and his wife despise 
him!" 

"Ask him," says a money-lending plaintiff in a 
bill of exchange case, "whether he isn't a Jew?'' 

"But," says the counsel, taken all a-back at the 
suggestion, "what does that matter?" 

"It will prejudice the jury against him," says the 
plaintiff. 

"But you are a Jew, sir?" 

"Yes but the jury don't know that. I am not a 
witness." 

This is the usual spirit in which counsel are 
instructed to cross-examine "to the credit of a wit- 
ness," and I need not say a cruel one it is. Spite 
and malice are generally the moving springs of that 
species of attack. 

The greatest mistake an advocate can make is to 
let his client dictate to him the mode in which his 
case is to be conducted. Either use your own judg- 
ment, or resign your duties to the hands of the 
gentleman who desires to conduct your case. You 
cannot drive a coach with your back to the horses. 

There was a famous case not long ago which is 



174 ILLUSTRATIONS IN ADVOCACY. 

extraordinary in many aspects. Extraordinary for 
the way in which experts swore; extraordinary for 
the enmity which was exhibited by some of the 
partizans as well as the defendant ; extraordinary for 
the mode in which the character of the plaintiff was 
assailed, both out of Court and in. 

There was no defence to the action: could be 
none when plain common sense was brought to bear 
upon it. There was no defence when the law was 
brought to bear upon it. 

There should have been an apology and a retract- 
ation; but you may ^always defend some actions, 
even though there is no real defence. The point I 
am about to direct the attention of the reader to is 
the attempt to destroy the plaintiff's character in an 
absolutely undefended case, and the consequences 
resulting therefrom. You may be sure that juries 
will make you pay for unfounded attacks upon wit- 
ness' characters. They invariably take the advocacy 
of the cause into their reckoning with the cause 
itself, and no one has power to prevent it. Try to 
reduce damages if you like, but you will find it 
difficult to reduce them on the ground that you 
aggravated your original wrong by abusing the 
plaintiff. Human nature has not yet been tutored 
by fierce advocates to put out of its calculation 
the injury done to a plaintiff by the defendant's 
mode of attempting to escape a just liability. You 
may injure your adversary more by firing at him in 
your retreat than you did in your first attack. This 



MODES OF CROSS-EXAMINATION. 175 

will be taken into account by the jury, although it 
forms no part of the original claim. 

The extraordinary case I allude to was an action 
for libel. The plaintiff was asked in cross-examin- 
ation whether he had not committed theft and forgery. 
The charge was indignantly denied. There was, 
indeed not a shadow of foundation for such a charge. 
I wonder why, after this, he was not asked whether 
he hadn't murdered his mother. He could but have 
denied it. 

After some considerable time the defendant went 
into the box to prove the truth of the libel; and by 
way of clearing up the matter of charge of theft, 
and forgery he was asked, as a sort of "By-the-by, 
Mr. - now you are in the box we may as well 
dispose of this little matter about which there seems 
to be some little misapprehension." 

That was the tone of injured innocence, assumed 
in consequence of the plaintiff denying that he was 
a forger. Observed the learned Queen's counsel : 
"Something has been said about the plaintiff and 
a cheque. I don't want to make too much of it, but 
for his sake it ought to be cleared up." 

Such kindness, I need not say, verily received its 
r.eward. 

"Oh, yes," says the defendant, "I remember." 

"You remember?" repeats the counsel. 

"Oh, yes; quite well," says the witness. 

"We may as well clear it all up. You had a 
cheque, had you?" 

"Yes." 



176 ILLUSTRATIONS IN ADVOCACY. 

"Where did you keep it ! " 

"In my desk." 

"And what happened ?" 

"I suppose he took it, and signed it 

"Did you authorize ah, well! you don't wish 
to go into it?" 

"Oh, dear no!' 

Poor man, he little thought he was already "into 
it" to the depth of four or five thousand pounds ! 

Counsel sits down. 

"Now." says the junior on the other side, in true 
Ciceronian style, "just attend to me. Have you 
talked this matter of the cheque over this morning?" 

The witness never expected this question any more 
than his counsel did ; but it w r as just the question to 
put, and the only one that could have the effect it 
did. But what is the witness to say? He must 
answer "Yes." 

"Did you talk it over with your solicitor?" 

Bound to answer "Yes." 

And was it arranged that you were to be asked the 
circumstances of this alleged robbery?" 

No other answer than "Yes" can be given. 

It was not au accidental thought of the lea mod 
counsel you see, but a planned and deliberate 
renewal of the attack upon the plaintiff's character. 

Thus literally in the interest of the plaintiff, was 
it cleared up at an expense of some thousands of 
pounds to the defendant. 

It may be as well to give the opinion of a distin- 
guished writer on this subject. 



MODES OF CROSS-EXAMINATION. 177 

The late Charles Reade, in a letter to the Daily 
Telegraph, entitled, "The rights and the wisdom of 
Juries," says with reference to the defence: 

"Right or wrong, they found some injurious ex- 
aggeration in the original libel, and much malicious 
exaggeration in the defence, which the defendant 
selected. Now, all juries argue backwards, from the 
animus of the defence to the animus of the original 
libel, and they have a right to do so. As to dam- 
ages, here I drop conjecture, for I think I know the 
grounds on which they settle them. They decupled 
the damages because the defence centupled the libel." 

The mild issue of "thief or no thief," was sug- 
gested, and the plaintiff was tortured, yet cleared. 
Where was his remedy for this attack? It was in 
its nature indictable, yet he had only the jury in this 
suit to pity him and to compensate him. God fov- 
bid that the defendants in libel should be encouraged 
by trumpery damages not equal to the plaintiff's 
costs, to stab another in so holy a place as a temple 
of justice, with any irrelevant dagger the ruthless 
hand can furnish to the passionate, and therefore 
remorseless heart. 

The defendant selected his own defence. He 
could have resigned the verdict, and reduced the 
costs and damages to a trifle. He preferred the bold 
course though he and his counsel knew it was the 
perilous one. 

Mr. Read speaks of the dangers of such a mode of 
examination from a point of view different from 
mine; he regards it from the public standpoint and 



178 ILLUSTRATIONS IN ADVOCACY. 

as a malignant attack by the defendant himself. I 
look at it from the advocate's position only. 

Subsequently, on a motion for a new trial, the 
whole blame for putting the offensive question was 
bravely accepted by the defendant's counsel. The 
blame doubtless may so be appropriated, but it 
could not be shifted from the defendant, who told 
the learned counsel that the plaintiff was a forger 
and a thief. The original libel could not be appro- 
priated by any number of counsel, nor could the 
subsequent slander. It was not invented by the 
advocate, and the advocate could not be punished 
for it. To relieve the defendant from the conse- 
quences of the slander, without paying the penalty, 
was only making matters worse, because it was an 
attempt to avoid the pecuniary consequences which 
must ensue. 

An advocate cannot take the blame of his instruc- 
tions, he can only accept the responsibility of acting 
upon them. 

It is unquestionably right sometimes to attack 
private character ; but you must be sure of your 
ground, and skillful in your mode of performance. 
Time and circumstances must be taken into account. 

Suppose a murder had been committed at a house 
of "ill fame," do you think it would be useful to 
ask the keeper of it whether he had ever been con- 
victed of keeping such a house ? It would be ab- 
surdly inconsistent with the nature of the inquiry, 
but if such a witness came up to give evidence of 
another man who was indicted for keeping a house 



MODES OF CROSS-EXAMINATION. 179 

of that character, the question then would be all im- 
portant, as it would throw light on the motive of his 
evidence, and absolutely destroy any value it may 
have possessed. Don't imagine that you are always 
advocating your client's cause because you are put- 
ting questions or making speeches. You may ride 
on a rocking-horse all day long and fancy you are 
hunting, but such a performance, however creditable 
to your imagination, will say little for your judg- 
ment. 



180 



CHAPTEE XV. 

CICERO'S DEFENCE OF KOSCIUS FOR MURDER. 



"Now," says the reader, as he glances at the 
heading of this chapter, "I am on familiar ground. 
I knew Cicero before I knew 'The house that Jack 
Built.' " 

"But still," I meekly observe, "You will agree 
with me that there is more of 'The House that Jack 
Built' than Cicero, in many of our modern trials. 
Otherwise how comes it to pass that simple cases 
with a single point last a fortnight, three weeks, or 
three months? Are judges less learned or juries 
more stupid than they were? By no means. Coun- 
sel have improved in their wind of late years, and 
clients seem to have greater facilities for raising it. 
But for 'The House that Jack Built' how comes it 
that in a civil case you may have the plaintiff on 
his trial for forgery, the defendant for libel and the 
witnesses for other crimes? How comes it that 



CICERO'S DEFENCE OF ROSCIUS. 181 

learned leaders wander away into the regions of 
"railing accusation," instead of keeping to the 
homely paths of fact that lead direct to the issue ? 
This is the fault of the shepherd boy who leaves his 
sheep to chase a butterfly or climb a pollard to see 
if there is a ghost in its hollow. What of pursuing 
character when you ought to be wrestling with facts 
and probabilities? Is a suggestion of forgery an 
answer to an action for breaking the plaintiff' s leg? 
That was not Cicero's style. It was no matter what 
path he travelled, or if he were in a wilderness with- 
out a path, his art ever pointed to the issue, and 
straight was the course he made for it. No butter- 



flies and no ghosts in hollow trees for him ; he dealt 
with hard, substantial facts and visible probabilities. 
But now let me ask the reader, whose intimate 
acquaintance with Cicero is of so long standing, 
what are the lessons in advocacy the great master 
teaches? He does not teach eloquence, for that ha.s 
never been taught since the world began, any more 
than poetry has been taught. He taught many 
things which ordinary minds can grasp. But what 
he teaches he also learnt. One can see that he 
studied order and arrangement, human nature in its 
complex and beautiful mechanism, its passions, pre- 
judices, and its innermost sources of action; he 
learned to measure its strength and to probe its 
weaknesses; he knew its ailments, and their proper 
treatment. He did not appeal to the passions when 
he had to attack prejudices; and where human 



182 ILLUSTRATIONS IN ADVOCACY. 

weaknesses invited his skill, he did not waste his 
energies in higher conflict. 

The whole of Cicero's speeches are constructed on 
the same lines; and, advocacy in the humblest 
branches constructed upon those lines, will achieve 
marvelous results. You will perceive in all the great 
advocate's speeches the same symmetrical propor- 
tions, the same mode of construction, and if I may 
be permitted the expression, the same elevation of 
surprising beauty. 

One has known voluble speakers hammer away 
at a case regardless where the blows may fall. There 
was a waste of strength here, and a mis-directed 
energy there, which you never detect in Cicero. A 
general onslaught is not the way to attack the case 
made against you. Cicero does not pour a shower 
of platitudes on the surface of a case, otherwise it 
would be like a wave dashing itself upon a rock it 
would roll back but the rock would remain uninjured. 
He attacks a single fact or an improbability at a 
time, and never leaves it till he has destroyed it if 
destruction be possible. He does not attempt to 
remove at once all the stones in an arch, but the 
Keystone only, and if he is successful there he leaves 
the rest to fall. 

He knew that many strong facts may rest upon a 
weak one : to the weak one then he directed his 
efforts. No fact in a case can stand alone; if it be 
not attached to another fact, it will and must dis- 
close an improbability. It is the improbability in 
that case he belabors. 



CICERO'S DEFENCE OF ROSCIUS. 183 

We approach the perfection of speaking when an 
advocate, skilled in his art, without witnesses, suc- 
cessfully attacks an apparently strong case that has 
been made against him. He is thrown upon his own 
resources. Facts are proved, so far as evidence can 
prove them, and it is a noble task to demolish them 
by argument. There is something more here than 
fighting a compensation case, in which, usually, there 
is about as much art required as there is in a well- 
organised wrangle between two accountants' clerks. 

The speech for Roscius, though not to be ap- 
proached for its eloquence, is the line upon which, 
consciously or unconsciously, are framed all success- 
ful defences. I say unconsciously, because, without 
studying the particular model, the same art is exhib- 
ited where the advocate has any knowledge of 
human nature and any skill in argument. Where 
you have no evidence the facts on the other side can 
only be met by argument, and argument must 
proceed upon their improbability. That is the key. 
But to show the improbability requires a carefully 
trained mind, educated in the motives, the passions, 
the weakness, the cunning of human nature. Let 
us test these observations by a short examination 
of the defence in the case before us. 

Roscius was charged with the murder of his 
father. The case, according to our modern and 
enlightened view, would not present any great diffi- 
culty. I know many juniors, and one or two leaders, 
who could have got Roscius off had he been tried at 
the Old Bailey. But the difficulties of the case are 



184 ILLUSTRATIONS IN ADVOCACY. 

not to be judged by our modern system of criminal 
law or criminal procedure, and indeed are nothing 
to the point in the matter of dealing with the case. If 
it had been ever so difficult the line of argument 
would have been the same, although the result might 
have been different. What then was the nature of 
the defence? I pass by the skillful apology which 
Cicero makes for appearing in the case at all, and 
the means he takes to impress the judges with the 
difficulties of the task, in consequence of the 
nature of the Government he indirectly attacks 
and charges with tyranny. He goes directly to 
the motives lohich influenced the prosecution. 

Suppose these motives had come last instead of 
first in the order of his speech, their effect would 
have been nearly lost, because they could not have 
a retrospective effect so strong as to impart a color 
to his past arguments. In placing them first they 
followed the speaker, and gave strength and effect, 
force and distinctness to every word he uttered. 

The motive is that Roscius may be got out of the 
way in order that Chrysogonus, the Director of 
Rome, may enjoy the estate which belonged to the 
father of the accused : and Cicero asks that this 
may not be permitted, and he asks this, not merely 
in the interests of his client, but he extends his 
advocacy and makes his cause the liberties of his 
country, which would not be safe if such a prosecu- 
tion were successful. The judges themselves, 
therefore, by this stroke were placed on the side of 
the defence. 



OICBBO'S DEFENCE OF BOSC1US. 185 

So one sees what powerful arguments may at times 
arise from an investigation of the motives which 
inspire a criminal prosecution. 

If the motive of the prosecutors be avarice or 
plunder, it follows that the judges are asked by them 
to become instruments of plunder and avarice by 
enabling the movers of the prosecution to carry out 
their object. A judgment adverse to Roscius would 
give them legal possession, so the judges are in fact 
insulted by the prosecutors. Good knowledge of 
human nature here, and marvelous skill in apply- 
ing it I 

Now comes a history of the father of the accused. 
His character and position are described; and 
differences between him and the two Roscii of 
Ameria are glanced at. 

Then it appears that while the accused, who was a 
farmer, was at Ameria, attending to his country 
affairs, and Titus Roscius every day at Rome, the 
old man was murdered as he returned one night 
from supper, a circumstance which Cicero hopes will 
give a pretty good intimation of the persons against 
whom the presumption of guilt is strongest. Proba- 
bilities again. So that what with motive and what 
with presumption, he starts very fairly on his 
course ; for, given motive and presumption you go a 
long way towards awakening suspicion, and suspicion 
cast on the prosecution is a strong auxiliary in a 
defence. 

Now he arrays the circumstances of suspicion or 
rather of that presumption which awakens suspicion 



186 ILLUSTRATIONS IN ADVOCACY. 

against the prosecutors. After the murder, a creat- 
ure and dependant of Titus Roscius, within a few 
hours, having travelled fifty-six miles in the dark, 
brings the news to Ameria, and tells it, not to the 
son, but to his enemy Titus Capita. Four days 
after, the news is brought to Chrysogonus. Then, 
not to take up the time of the Court, a consideration 
in those days if not in ours, these disinterested 
parties enter into a confederacy. 

Now comes the account of what the confederates 
did. Chrysogonus buys at an auction the estate of 
the deceased man, who was entirely devoted to the 
interests of nobility. Capito takes three of the 
best estates, while Titus, in the name of Chrysogonus, 
seized the rest. Things fetched apparently very 
little at the sale 50,000 worth commanding only a 
few pounds. In the meantime the worthy Titus, 
the agent of Chrysogonus comes to Ameria and seizes 
the estate of Cicero's client, drives him naked, my 
lords, from the house of his father, the seat of his 
ancestors, and the altars of his family ; he took 
many effects openly to his own house and secreted 
others, lavished some upon his confederates, and 
sold the rest by auction. 

No wonder the people of Ameria wept. The poor 
son, the accused, was left in poverty, and these great 
men enjoyed his property I There was not a man 
who would not rather have seen the whole party 
writhing in flames than this Titus swaggering and 
domineering in the spoils of the excellent and vir- 
tuous Sextus I 



CICERO'S DEFENCE OF RO8CIU8. 187 

The inhabitants of Ameria, therefore pass a 
resolution, and a deputation of ten was sent to 
Lucius Sylla to tell him of the character of this Sextus 
Itoscius, and to complain of the wickedness of these 
confederates, and to beg his interposition on behalf of 
Sextus' poor son. Then Cicero asks leave to read 
the decree. Sylla, he is careful to impress upon their 
lordships, knew nothing of the transaction. The 
deputation never reaches Sylla. Chrysogonus sh uffles 
and promises to resign the estate to the son, and 
Titus promises most faithfully to join in this so fair 
undertaking. But they delay the performance from 
day to day, and at last, beginning to feel they were 
not in possession of a good title, they enter into a 
conspiracy against the life of Cicero's client. But 
poor young Roscius flies for protection to a lady who 
had been his father's patroness. She succors and 
protects him, and then they have recourse to the 
guilty device of impeaching him of the murder of 
his father I They secure a hardened impeacher, and 
as they knew they could not prove him actually guilty 
they resolve to make him politically guilty. They 
think that the power of Chrysogonus would prevent 
any man from coming forward to defend him against 
so foul a charge as parricide ; but apparently they did 
not know the courage of the young advocate named 
Cicero. 

After showing thus the nature and motive of the 
prosecutors, the learned advocate asks where he shall 
begin by way of meeting the charge. The answer 



188 ILLUSTRATIONS IN ADVOCACY. 

had better come from himself, for no one can answer 
like Cicero. 

He begins by depicting the unhappy event of the 
barbarous murder, and says they improve on that 
wickedness by bribing witnesses to accuse the son, 
with his own money I He asks what is there that 
requires to be defended? He will examine the whole 
matter, so that the Court will have a dear compre- 
hension of the circumstances upon winch the accusa- 
tion ties, of (he points to which he is to speak, and of 
the manner in which they ought to decide. 

Cicero comes now to the charge, the blackest of all 
crimes, requiring to be strictly proved beyond even 
facts, for it must be shown that his whole life has 
been one of consummate guilt. This would not and 
could not be shown in an English Court, as the reader 
is aware, but the converse could. A good character- 
would be placed by a skillful advocate immediately 
after the charge. What is the charge ? Who and what 
is the prisoner? So that Cicero here, as on all other 
occasions, is true to the highest art. He not only 
shows that the prosecutors can say nothing against 
his previous character, but he goes on to show every- 
thing by way of argument, to be afterwards sup- 
ported by evidence, in his favor. And it may here 
be mentioned that it is open to the prosecution in our 
own day to prove the bad character of the prisoner 
if his counsel gives evidence of character in his 
favor. 

Cicero, never forgetting that all crime proceeds 
from motive, places motive in the forefront of his 



CICERO'S DEFENCE OF ROSCIU8. 189 

argument for the defence. It must come after 
character, because if the character be good, there 
will be the less probability of there being any motive. 
It is its natural place, and Cicero never puts any- 
thing out of its order. Here, in arguing that there is 
no motive, he deals with two improbabilities in their 
order. First, the improbability that without very 
strong provocation a son should attempt the life of 
his father; and, on the other hand, the improba- 
bility that a father should hate his son without 
weighty and indisputable reasons. Both these points 
are argued upon the basis of the character of father 
and son, upon the circumstances attending their busi- 
ness and social relations to each other, as well as 
upon the general practice and habits of society with 
reference to their mutual dealings ; and he does not 
leave this subject till he has examined it from 
every point of view and left nothing further to be 
urged. 

It was said by the prosecutors that the father of 
the accused intended to disinherit him, and that 
caused hatred. 

"If so," asked Cicero, "for what reason? Did 
he do it? What prevented him from doing it? and 
did he ever mention such intention?" 

A safe question after the statement made by the 
prosecutor. Having shown that the charge of parri- 
cide is brought without a suggestion of motive, he 
says that the prosecution should be abandoned, but 
for once he will forego his right to demand it, and 
being so thoroughly satisfied of the innocence of his 



190 ILLUSTRATIONS IN ADVOCACY. 

client, he addresses himself to that part of the case 
which would come next in order if the least sugges- 
tion of motive could have been made. 

He now abandons the argument based on motive, 
and asks how the murder was committed ? He not 
only asks the question, but answers it, and deals 
with every possible answer that could be given. If it 
is said the accused did it with his own hand the 
answer is complete he was not at Rome at the time. 
A good alibi can be proved. If it was done by 
others, were they slaves or free? Were they of 
Ameria or of Rome? If of Ameria let them be 
produced ; if of Rome how did this country bump- 
kin know Roman cut-throats? he who had not been 
at Rome for years. If he met them to arrange the 
murder of his father, where was the place of meet- 
ing? If he hired them to whom did he pay the 
money? where did he get it? and what was the 
amount? These are awkward questions, but they 
refer to circumstances that usually accompany justice 
when she is in pursuit of a criminal. And they were 
the more awkward to answer, inasmuch as the pros- 
ecutors had affirmed that Roscius was a country bar- 
barian, who held no intercourse ivith the human spe- 
cies and never set foot within a town. 

Cicero does not readily abandon this line of argu- 
ment: it ia too precious. Truth wooes him with too 
fascinating a smile of approval, and he proceeds ; 
taking their own description of the country clown, 
and working upon it with imperturbable pertinacity, 
he asks, as Roscius was at Ameria when his father 



CICERO'S DEFENCE OF EOSCIUS. 191 

was murdered at Rome, he must have written to some 
assassin there or sent for one! But this involves the 
employment of intermediate agents, not one of 
whom can be traced or even suggested by the prose- 
cution. 

If not committed by free-men the murder was 
perpetrated by slaves. But the prosecution will not 
allow the slaves of the accused to give evidence, 
which is a good argument in favor of the defence ; 
and, moreover, these slaves are now in the service of 
Chrysogonus, pampered and rewarded by him not 
to give false evidence against Roscius, which it 
would be impossible to do with success in the pres- 
ence of such a cross-examiner as Cicero, but to sup- 
press that evidence which would have cleared his 
client. 

Now, then, my lords, having traveled thus far, 
whom do you suspect? What inferences and suspi- 
cions arise from all these arguments? Roscius is 
reduced to poverty by his father's death, and he is 
not permitted to inquire into it. The prosecutors, 
who are known to live by deeds of bloodshed, have 
possessed themselves of the property of the deceased 
man. 

Now is the time to state an alibi; and having thus 
far refuted the charge he considers it advisable not 
only to acquit his client, but absolutely to purge 
his character from the charge by showing who did it, 
or by raising such presumptions of guilt that all the 
world shall fix it upon his persecutors. He is to 
show the murderers, the confederacy and the con- 



192 ILLUSTRATIONS IN ADVOCACY. 

spiracy; and he warns the judges, with a touch of 
exquisite skill, how many presumptions are necessary 
to establish a single fact. 

He begins by saying that they can find no motive 
in Sextus Roscius, but that he can find a motive in 
Titus. If so, that is a good foundation on which to 
build his presumptions. The motive stands out 
clearly enough it was plunder. The man who was 
poor before the murder becomes rich after, and rich 
with the estates of the deceased. Then the prose- 
cutor, who thus gains by the murder, was a man who 
bore an inveterate hatred to the deceased man. 

The motives being thus established, he next 
inquires whether there was in the case of Titus that 
which he proved did not exist, so far as could be 
seen, in Sextus namely, opportunity, and this is 
shown beyond the shadow of a doubt. He was at 
Rome when the murder was committed ; that is one 
circumstance, but we need more. Others were at 
Rome besides Titus. But this gentleman was ac- 
quainted with bands of assassins who murdered that 
those who employed them might become possessed 
of their property. 

Next, what did Titus do after the murder? He 
struggled to become the accuser of Roscius. It was 
his friend and dependent who brought the first news 
of the murder to Ameria. Did this messenger and 
friend do this of his own head ? If so what concern 
had he in the matter? And why did he go to Ame- 
ria with the news? And why did he go to Titus 
Roscius Capito first of all, instead of to the unhappy 



CICERO'S DEFENCE OF ROSCIU8. 193 

family of the deceased? Then see the expedition 
with which this messenger carried the news ! How 
did he come to hear of it so soon? He must have 
heard of it the moment after it was committed. And 
from these facts it follows that both Titus and the 
messenger were present at the murder. Furthermore, 
the news being, taken to this Capita, who shared 
with Titus the plunder, the whole matter is as clear 
to the minds of the judges as if they had stood by 
and seen the murder committed. 

The subsequent acts of the conspirators are next 
referred to ; such as sending the news to Chryso- 
gonus, the hurried sale of the estates, and the 
sharing amongst them of the property. Next, the 
suppressing of the evidence which the slaves could 
give, is strong presumption that it would be, not 
only to the advantage of the accused, but to the ruin 
of the accusers, if they had been permitted to be 
examined. 

Now all this seems very simple indeed. So are 
nearly all the great works of art when closely ex- 
amined. Art loves simplicity, and nature abhors 
complications. It is inartistic Ignorance that mud- 
dles, and Pettifoggism that complicates. 

I have often heard it said that "Cicero would not 
do now." I answer, Cicero would have been the 
greatest advocate of the day, because he was one 
of the finest speakers, and constructed his defences 
and his prosecutions on the truest lines. Nor is there, 
even now, nor has there ever been, any other mode 



194 ILLUSTRATIONS IN ADVOCACY. 

than that adopted by Cicero of properly conducting 
a case. 

Mr. Bagpipes may suit our age better; but, if so, 
it has marvelously degenerated in everything that 
pertains to real oratory and true advocacy. Cicero 
was a good speaker, which Bagpipes is not. How, 
then, can it be said that bad speaking will succeed 
and good speaking fail ? Why will not good speak- 
ing do now? But Cicero was also a common sense 
advocate, which Bagpipes is not. Why, then, if 
Bagpipes succeeds should not Cicero? Can it be 
said that the people are less intelligent than they 
were in Rome in the days of Cicero? But further, 
Cicero constructed his cases on the truest lines of 
advocacy; Bagpipes has no constructive faculty, and 
does not construct his advocacy at all. His speeches 
are but a confused torrent of commonplaces, and his 
cross-examination but a haphazard flinging of ques- 
tions at a witness, with the bare hope that some one 
or other may hit something or somebody. 

Our tribunal, no doubt, is different from the one 
Cicero addressed ; the law, the political situation, 
the habits, manners and institutions of the people 
are all different, but human nature remains un- 
changed and unchangeable, and so does the true art 
of appealing to that nature. 

Did the reader never preceive an almost perfect 
likeness between a parent and child ? the same expres- 
sion of face and tone of voice, the same smile upon 
the lips, the same twinkle of the eye, when the feat- 
ures of the one bore no actual resemblance to the 



CICERO'S DEFENCE OF ROSCIUS. 195 

features of the other? If so, he has seen the like- 
ness which exists between the true advocacy of 
to-day and the advocacy of Cicero. 



196 



CHAPTER XVI. 
THE STOEY OF THE TICHBORNE CLAIMANT. 



ANALYSIS OF MR. HENRY HAWKINS** SPEECH FOE THE 
PROSECUTION IN THE TICHBORNE CASE. 



As the object of telling a romantic story differs 
from that of narrating a series of facts in Court, so 
the art is different. The interests also are of an 
opposite nature. The object of the former is to 
entertain without any regard to your belief, while 
the latter is to impress your belief without any viev 
to your entertainment, except that an artistic advo- 
cate will take care to rivet your attention by the 

*Now Sir Henry Hawkins, and one of Judges of the High 
Court of Justice, of England. 



THE TICHBORNE CLAIMANT. 197 

entertaining manner in which he unfolds the inci- 
dents of his story ; but he will not amuse you at the 
expense of his cause, or excite your imagination to 
the detriment of your judgment. The interest he 
excites is in the reality of the facts he intends to 
prove ; the charm of the novelist depends mainly on 
presenting fiction, so that it resembles reality. The 
emotions are stirred by imaginary incidents, and at 
the emotions his art stops. The advocate, on the 
contrary, if he awakens emotion, does so only the 
more surely to reach your belief, and when he pro- 
duces a striking situation it is but for the purpose of 
impressing its incidents. 

The novelist and the dramatist strike a situation 
in order to heighten the entertainment. I do not 
say that the advocate will not sometimes waylay 
you with surprise, but when he does so it is still 
with the object of fixing more certainly your belief. 

If these observations be true, it follows that the 
mode of unfolding a story containing many striking 
incidents will be different in the two artists. The 
novelist may commence where he likes, except at the 
end; the advocate will generally commence before 
the beginning of the actual drama ; that is to say, he 
will state the charge, if it be a criminal case, and the 
nature of the action, if it be a civil cause, before he 
comes to the incidents of the story. 

In the case now before us I have nothing to do 
with its merits, but only with the merits of the 
opening speech, and with them only so far as the 
skill in its construction is concerned. The mechan- 



198 ILLUSTRATIONS IN ADVOCACY. 

ism of the speech first, and the mode of presenting 
it next. But what an ample field for criticism 
stretches out before us as we cross the borders of 
this amazing case ! On every side are incidents 
innumerable that have to be collected, collated, sep- 
arated and arranged. It is a wilderness of facts; 
those in the far distance bearing a near relation to 
those that are close at hand. Circumstances appar- 
ently unconnected have the closest relation to each 
other; truth and falsehood are intermingled in the 
wildest confusion ; ignorance and imbecility, preju- 
dice and fraud, overlay and smother minute incidents 
of overwhelming importance, and even twist and 
distort facts that can neither be hidden nor de- 
stroyed. 

The panorama of a long series of years has to be 
brought before the jury. To unfold it with the art 
of the novelist would be to produce thrilling and 
extraordinary effects exciting wonder and sympa- 
thy ; to perform the task with the skill of the advo- 
cate will be to fix the belief of the jury without any 
regard to their emotions. The former would draw 
from the reader the exclamation "Wonderful I" 
The latter must excite the jury at every stage of his 
progress to say "Impossible !" 

The case was opened as simply and as dramat- 
ically as anything I have ever listened to ; and, 
reading the statement as I do now after many years, 
it reproduces in my mind all the excitement and 
wonder which I so well remember to have experi- 
enced when it was delivered. 



THE TICHBORNE CLAIMANT. 199 

In the first place it is noteworthy that there need 
be no waste of words in the exordium of this 
"momentous case," although the jury are told that 
"the defendant is charged with a crime as foul as 
Justice ever raised her sword to strike, and that the 
public interests demanded the protection of the 
innocent as well as the punishment of the guilty." 
That is enough, and then comes "the substance" of 
all the great mass of facts which will have to be stated. 

It is said in few words, and to this effect: In 
April, 1854, Roger Tichborne, the heir to the Tich- 
borue baronetcy and estates, embarked at Rio on 
board the "Bella," which was lost, and for eleven 
long years nothing was known or heard of him. 
Suddenly, in Australia, a butcher came from the 
shambles and announced himself as the long lost 
heir, and in the legal proceedings which were insti- 
tuted by him for the recovery of the estates, he 
swore falsely many things in support of his claim, 
of which these are the chief: Of course he swore 
that he was Roger Tichborne, the son of the last 
baronet. In support of the story which he told he 
also swore that he had, while on a visit to his uncle, 
seduced his cousin Kate; and, it being suggested to 
him that he was Arthur Orton, the son of a butcher 
at Wapping, he swore that he was not. These 
three things he falsely swore, and those are the 
three main charges against him." 

"Such is the outline of the fabric of that gigan- 
tic fraud which it is my duty to unfold to you, and 



200 ILLUSTRATIONS IN ADVOCACY. 

now I proceed to state the story of the life of Roger 
Tichborne." 

This is enough to tell the jury as to the charge. 
Now come three things necessary to clearly define, 
because identity or non-identity in this case is 
everything. If this be Roger Tichborne we shall 
find some likeness to his former self in his educa- 
tion, character and mind. We shall also find some 
knowledge of the incidents of his past life and his 
connection with bygone and living persons. So, if 
the jury are acquainted with Roger Tichborne's 
early life, they will see whether this man is likely to 
be he likely, that is all, so far as these details are 
concerned ; probabilities ever asserting their influ- 
ence, as they always do in true advocacy. The 
main incidents I shall give because many students 
will, I am sure, find them interesting as a story as 
well as instructive as a piece of advocacy, who 
would never wade through the Tichborne trials in 
the newspaper reports of the time. 

We are told that Roger was, in his earlier years, 
educated in France; that he occasionally visited 
this country; and that his education was con- 
tinued at Stonyhurst. Then came many details of 
the early incidents of his life, and as to his habits, 
manners and pursuits ; told, says the learned counsel, 
in detail, because they had been denied by the defendant 
in his cross-examination, while endeavoring to sup- 
port his claim to the Tichborne title and estates. 
Of course, if he is well caught in a good many lies 
hereabouts, it will go far to shake his character in 



THE TICHBORNE CLAIMANT. 201 

the eyes of the jury for veracity. It was not omitted 
to be stated that Roger had been tattooed on the 
arm, which was to be proved by Lord Belle w ; a good 
point, of course,in an individual's likeness to himself, 
because, although features change aud waists enlarge, 
tattoo.marks remain about the same "through all the 
changing scenes of life." Rogers' s good French was 
mentioned, as also his bad spelling in English, but a 
kind of spelling,which would be peculiar to a boy who 
had spent his early days in a French school, and by no 
means likely to be acquired in a butcher's shop at 
Wapping. 

So that there was a pretty good likeness of the 
outward boy on the mind of the jury so far as his 
habits, customs and manners were concerned, before 
the learned counsel proceeded to give a likeness of 
his character, including his heart and mind. 

Roger entered the army and fell in love with his 
cousin Kate. To show his mind on this subject many 
letters were read "to convey to the jury "a thorough 
knowledge of this young man's character and ideas," 
his way of thinking and style of writing, because the 
learned counsel would have to contrast these letters 
with those of the defendant. Not a bad test of like- 
ness or unlikeness this between two minds, if two 
minds they were. We are next brought to the 
turning-point of Roger's life his uncle's discovery 
of his attachment to his cousin and hie disapproval 
thereof. In consequence of this, on the 12th of 
January, 1852, he left Tichborne Park, where he was 
then staying, and wrote in melancholy terms of his 



202 ILLUSTRATIONS IN ADVOCACY. 

intention to go abroad for ten of fifteen years. In 
that month he confided to a Mr.Gosford,in a "sealed 
packet," his instructions as to certain matters in the 
event of death. 

The jury are asked if it were possible that such 
an event could be forgotten? They were then 
enjoined to bear in mind certain letters to Kate 
which were couched in the strongest terms of affec- 
tion. In answer to a letter from Lady Doughty he 
wrote a warm epistle expressing his affections for his 
cousin. After spending a few days with his relations 
in town he visited them in Hampshire. Whilst there 
"he gave his cousin a document dated 22nd June, 
1852, the duplicate of which he said he had deposited 
with Mr. Gosford in the sealed packet. That docu- 
ment Miss Doughty had preserved to this hour and 
she would produce it to the jury. It was a short 
statement only four lines a promise to build a 
chapel at Tichborne if he married his coitsin within 
three years. And from that hour to the present she 
has never seen Roger Tichborne. This, I pledge 
myself to prove to you by overwhelming evidence. 
Never forget the facts and dates I have now stated ; 
they are of vital importance in this case. Could 
such facts ever be forgotten by Roger? He 
went to Tichborne no more; he went to Upton, 
near Winchester, in the autumn of 1852, to hunt; 
sold out of the army January 6th, 1853, and in 
February went to Paris to take leave of his parents, 
who were living there ; left with his mother a lock of 
his hair, and returned to England. Leaving Mr. 



THE TICHBORNE CLAIMANT. 203 

Gosford a power of attorney, on the 25th February 
he left London for Southampton, accompanied by 
Gosford, who took leave of him at Winchester. On 
the 4th March he sailed from Havre for Valparaiso." 

Now the wanderings of Roger are traced by the aid 
of maps in South America. Dates of arrivals at 
different places, and departures, are given with a view 
of falsifying dates given by the defendant in the 
former trial. After making a tour in the interior, 
Roger returned to Valparaiso, stopping on his way at 
Lima, where he engaged one Jules Berand, who 
would be called to give some important evidence. 
From Jules Berand he purchased certain curiosities, 
especially a little skeleton which Roger sent over to 
Gosford, and which would be produced. It was 
produced on the last trial, and Mr. Hawkins says he 
shall have to call particular attention to the evidence 
given on that trial by the defendant concerning this 
"little skeleton." It may be big evidence, although 
a small skeleton. 

At the end of December Roger was at Santiago 
making preparations for a tour in the mountains. 

While there two daguerreotype portraits were taken 
one for his mother and one for Lady Doughty. Of 
this there could be no doubt, as he refers to them in 
a letter to Lady Doughty written in February, 1854. 

In January he left Santiago for his tour in the 
mountains. On the 13th February he arrived at 
Buenos Ayres. Thence he went to Rio and engaged 
a passage on board the Bella for New York. He had, 
in the meantime written many letters to his aunts, 



204 ILLUSTRATIONS LN ADVOCACY. 

Lady Doughty and Mrs. Seymour, and to Gosferd. 
These will be produced, and important evidence, the 
learned counsel says, they will be, "because they are 
the evidence of Roger Tichborne himself." In not 
one of these letters is Mellipilla mentioned, nor the 
name of the family of Castro, with whom the de- 
fendant swore he spent three weeks. In one of these 
letters, too, he says he had heard from Lady Doughty 
of the death of his uncle, the baronet, by which the 
baronetcy and estates descended to his father, and 
he himself became next heir. 

Of vast importance, too, says Mr. Hawkins, is the 
fact that, in one of his letters, he alludes to his 
"daily journal." 

Another fact of importance was that, on the death 
of his uncle, he became entitled, under the settle- 
ments, to 1,000 a-year; and he wrote home about 
it, and asked that, "as my income has increased since 
my uncle's death, pray go to Messrs. Glyn's to ex- 
change the letter of credit for 2,000 for three years 
for one for 3,000 for the same period." This is 
considered important as showing the intended period 
of his stay abroad. It is dated Lima, September llth, 
1853, and is addressed to Mrs. Slaughter. 

Next come letters from Buenos Ayres and Monte- 
Video in March 1854, in which he says he is "fond 
of this kind of life," intends to visit other parts of 
South America and then proceed to New York. On 
April 1st he wrote his last letter, so far as the 
prosecutors knew. He then went to Rio, where the 
Bella lay, bound for New York. Jules Berand saw 



THE TICHBORNE CLAIMANT. 205 

Roger on board, and would be called as a witness; so 
would two Captains in the merchant service, who also 
saw him. The ship sailed on the 20th April, 1853, 
commanded by Captain Birkett. Four days after, 
the long-boat of the Bella was picked up at sea. The 
ship was never heard of again nor any of the crew. 

'All the world, "says the learned counsel" believed 
that Roger Tichborne was dead. One poor, crazy, 
misguided soul alone refused to listen to the voice of 
reason refused to believe that her first-born son 
was dead. Gentlemen I have now finished with the 
life of Roger Tichborne, and I shall have to ask you 
whether the man who sits there is the young man 
whose history I have given you. If he is, then he is 
wrongly charged in this indictment. If he is not, 
then he is undoubtedly guilty, for he has sworn that 
he is the man." 

Let it be now remembered that all the story of the 
Tichborne family and all the material incidents in 
the life of Roger are before the jury. They know 
his education, his connections, his constitution, his 
character, his disposition, even his eccentricities ; 
they know his tender feelings towards, and respect 
for, the lady he was villainously said to have seduced. 
They have daguerreotype likenesses of his features ; 
they have more than daguerreotype likenesses of his 
mind. They know that he was a constant letter writer, 
and not the man to cease from writing for eleven years 
if he had been alive; and they know that his letters 
ceased to come after his disappearance in the JBella, 
where all were lost. They know that he was pretty 



206 KLLUSTRATION8 IN ADVOCACY. 

keen with regard to monetary arrangements, and that 
he knew the exact time when he could increase his 
allowance, and that he was fond of the wandering 
life of adventure and freedom he was leading. 

Here was his portrait then, hy a master hand and, 
I have no hesitation in saying that it could not have 
been surpassed by human skill. We have him from 
childhood to youth, from youth to the stripling 
officer in the Hussars, and onward then a little fur- 
ther till he becomes the adventurous explorer of the 
South American wilds ; thence onward again to his 
departure in the Bella, when we lose sight of him for 
ever. In all these changes and vicissitudes there is 
not an instance of his acting contrary to the instincts 
and breeding of a gentleman. We gather this from 
the picture of his life, an(J important it is to remem- 
ber. We know, also, that he was not a clever, and 
far less,a cunning youth, a not unimportant feature of 
his character to bear in mind. The face may change, 
but mental capacity is stamped with an unchangeable 
quality; it may brighten or tarnish, but it never 
loses its characteristics. 

With this portrait closes the first act of this won- 
derful drama. 

The next scene is also artistic, and the "arrange- 
ment" might be called an arrangement in black and 
white. Mr. Hawkins likes contrasts. He knows the 
effect of these on juries, and so he opens the next 
act in these words: 

"I have now to direct your attention to the life of 
a very different person the life of Arthur Orton, 



THE TICRBOKNE CLAIMANT. 207 

the son of a respectable butcher at Wapping. If the 
defendant is the man, then he certainly is guilty, for 
he has sworn that he is not." 

A good, straight way of putting it 

Then the jury are reminded that although he may 
not be Orton it does not follow that he is Tichborne. 
But if he be Orton, as is now going to be shown, 
then, of course, he is guilty of both perjuries. 

Arthur Orton lived at 69, High Street, Wapping, 
with his father, George Orton, who had a numerous 
family. Arthur was born on the 1st of June, 1834. 
He was poorly educated, could read and write, and 
had a little arithmetic. He was afflicted from infancy 
with St. Vitus' dance; and in 1848 it was suggested 
he should go to sea with a view to getting rid of this 
malady. Accordingly, he sailed via Antwerp for 
Valparaiso in a ship commanded by Captain Brooke. 
Captain Brooke was dead, but his widow, since re- 
married to a Mr. Howell, could be called, and she 
would say that the defendant, to the best of her 
belief, was that Arthur Orton. 

In November, 1848, Orton was at Valparaiso. In 
January, 1849, he went there again, having de- 
serted from his ship, and thence to Mellipilla, where 
he made the acquaintance of a family named Castro, 
who treated him kindly. In February, 1852, he left 
Chili in the name of Joseph Orton, but with the sea- 
man's number of Arthur Orton. He sailed in the 
Jessie Miller, came home, and went to Wapping. He 
had by this time so increased in bulk that he was 
called "Fatty Orton." He paid his addresses 



208 ILLUSTRATIONS IN ADVOCACY. 

to one, Mary Ann Loader, the daughter of a lighter- 
man, who would be a witness doubtless to say that 
the defendant is her old lover. 

In December, 1852, he sailed on board the Middle- 
ton for Hobart Town ; James Lewis, captain ; one, 
James Peebles, boatswain ; while one of the seamen 
was named Owen David Lewis. On board the ship 
he wrote to Miss Loader, which letter was read, and 
which, with other letters of the defendant, would 
show the difference in handwriting and style from 
those t/ Roger of the same period. The spelling was, 
indeed, remarkable; "writing" is spelt without a 
"g; "few is written /we ; " enquiring" is spelt enquir- 
een. But this, of course, does not matter if the defend- 
ant be not that ArthurOrton ;he,in that case not being 
responsible for the bad orthography of the Wapping 
Butcher. But if he is shown to have written these 
letters, the probability is the jury will identify him 
with that same butcher. Let us follow then his his- 
tory. He went in the "Middleton" as a butcher. In 
April, 1853, he arrived at Hobart Town, and in that 
town a family connected with the Ortons was settled. 
Their name was Jury. He took a letter of recom- 
mendation to these Jurys, and Mrs. Jury would be 
called as a witness, not to prove merely that Orton 
came there, but that this defendant was that Orton; 
so he will have a double benefit of trial by Jury. 

A Mr.Hawkes, of Hobart Town, who bought meat 
of him would depose to the same fact. He remained 
there as a butcher till 1855. The jury are asked at 
this stage to bear in mind that at this time Eoger 



THE TICHBORNE CLAIMANT. 209 

Tichborne was in South America. Orton borrowed 
14 from Mrs. Jury, and gave a note of hand bearing 
date 1855. That, theref ore jixes his exact whereabout; 
at that time. Note was due in August, but when 
August came Arthur was gone. 

In the*latter part of 1855 or beginning of 1856, 
Orton was in the service of a Mr. Johnson, at New- 
burn Park Gippesland, Australia. In 1856 he was 
in the service of a Mr. Foster, where he remained 
till March, 1868. In that month he was at Dargo, 
which is proved by a document dated Dargo, March 
llth, 1868. Orton remained here between one and 
two years; a Mr. Hopwood would prove this fact, 
for he saw him at a place called Sale, where he was 
engaged in breaking horses, and this witness also 
will prove that he saw the same Orton in 1863 at 
Wagga- Wagga . He was in the service of a Mr. 
Higgins there, and this evidence is corroborated by 
the defendant himself, who had admitted that he was 
in the service of a Mr. Higgins in 1865; so here is 
truly a matter of great importance ! The man the 
the learned counsel has been tracing all along as 
Arthur Orton turns out in 1865 to be Roger Tich- 
borne ! Could there possibly have been a transmi- 
gration of Roger's soul? Now, Hopwood, who had 
known this same defendant as Arthur Orton, and 
esteemed him as "his old friend," met him one day 
in Wagga- Wagga in Higgins' shop, and went in and 
spoke to him, calling him by his old name. Alas? 
the mutability of human names 1 



210 ILLUSTRATIONS IN ADVOCACY. 

"I am not Orton," says the defendant, "I am 
Castro. Come and have a drink." 

But whether Orton or Castro he remembered Hop- 
wood. They drank ; they talked of old times ; Castro 
asked after old friends, and as they got more chatty, 
Castro tells his friend why he had changed his name 
"there was a warrant out against him about some 
horses." 

"Now," says the learned counsel, "Hopwood will 
tell you that the man there is the same man he had 
known in Gippesland,stt Dargo, at Boisland, and at 
Sale." And in addition to this, another witness 
would prove he saw defendant at work as a butcher 
in Mr. Higgins' shop. On the 20th of January, 
1865, this Castro was married to Mary Ann Bryant, 
describing himself as born in Chili, and giving his 
age as thirty years same age as Arthur's. After 
his marriage he lived at Wagga-Wagga in a state of 
abject poverty, and became at last acquainted with 
one, Gibbes, an attorney a great comfort, no 
doubt, to one in abject poverty, and better to know 
than a constable with a warrant 'about some horses' 
one would think. Now comes an apparent break in 
the story; but a break by no means, for it becomes 
the key to all the future conduct of this Castro. 
'Poor Lady Tichborne,' says the learned counsel, 
'alone of all the world, clung to the belief that her 
son was not really dead.' No tidings had been 
heard of the Bella, no news of the vessel or the 
crew, but still she clung to that belief. She was, 
moreover, not on good terms with the Tichborne 



THE TICHBORNE CLAIMANT. 211 

family, and was not satisfied with the settlements. 
She had been left out in the cold, with no provision 
beyond her marriage settlement. Her income was 
limited. 'Now,' says the learned counsel, 'such a 
person would be a ready tool to an impostor, suppos- 
ing her own reason to be blinded by her feeling and 
her delusions.'" 

A very good and striking way of putting it. No 
one could do better than that, Cicero or no Cicero. 

"Still, during her husband's life she took no 
active steps in the matter; but in 1862 her husband 
died. The voice of the only person who could influ- 
ence or console her was thus silenced, and she at 
once set to work advertising for her son. In 1863 
she advertised in the Times and in the Australian 
papers, and in that year the death of her husband, 
James Tichborne, was announced in the "Home 
News" in Australia. But it is not easy to ascer- 
tain the exact time when it first occurred to anyone 
that this slaughter-man would set up this monstrous 
claim to the Tichborne title and estates." But this 
is clear that it was after the advertisement and the 
announcement of the death of the last baronet an 
important point, which the jury note. Here springs 
a huge mountain range of probabilities ! 

This Castro had a Hampshire acquaintance who 
knew something of the Tichborne family. In 1865, 
however, he knew little of the Tichborne title or 
estates. Further information, therefore, would be 
necessary before setting up the claim, and one other 
matter was worth enquiring into before taking such 



212 ILLUSTRATIONS IN ADVOCACY. 

a step : It was desirable to find out what had become 
of the Orton family at Wapping. It would not do 
to write to Wapping in his own name or in his own 
hand, so he went to a schoolmaster and got him to 
write for him in the name of Castro. The reader 
will remember that Roger never knew Castro. 

Here the learned counsel uses a strong argument 
in the shape of an important question or two, which 
will require a deal of answering, "Why on earth 
should he have done that? Above all, why should 
Roger Tichborne write in his own name or anyone 
else's name to enquire after the Orton 's at Wapping? 
Roger, who never was at Wapping in his life, and 
never heard of the Ortons ! Yet this man wrote in a 
feigned name and in another person's hand, and as a 
stranger, to one, Richardson, at Wapping, to enquire 
after the Orton family. How should he have known 
Richardson? "Another important question, giving 
birth to a whole family of inferences. 

The letter was as follows: 

"Wagga-Wagga, April 13th, 1865. 

"Mr. James Richardson: 

"SiR: Although a perfect stranger, I take the 
liberty of addressing you, and as my residence at 
present is in this distant Colony, I trust you will 
pardon the intrusion and oblige me by granting the 
favor I seek. I believe there was, some years ago, 
living in your neighborhood a person named Orton. 
To this man I wrote several letters, none of which 
have ever been answered. The letters are of 
importance to Orton or his family, and to no other, 



THE TICHBORNE CLAIMANT. 213 

so that I must conclude he has not received them, 
or I am certain they would be answered; besides as 
this district is, or lately was, in a very disturbed 
state, through a lawless set, who styled themselves 
Bushrangers, and who respected neither life nor 
property, I concluded my letters perhaps fell into 
their hands. If Orton or his family live near you 
still, or if you have, or can give any information 
respecting them, I shall forever feel grateful. I 
beg to say here with pleasure that one of the most 
notorious of the Bushrangers has fallen by a rifle- 
ball and that on the news of his death and doings 

O 

being properly chronicled, I will send you the paper 
containing such. 

'I trust you will not fail to oblige me by sending 
any information whatever respecting Orton or his 
son Arthur. 

I am, Sir, your obedient and obliged servant," 

THOMAS CASTRO." 

This letter, defendant admitted, was written by 
his dictation, and was produced. This was shortly 
before the claim was set up. 

"So much for the origin of this most monstrous 
fraud," says the counsel. There was no reply to the 
letter. An important fact to state when the subse- 
quent conduct of the defendant is considered. 

Then comes another curious step taken by the 
defendant. For eleven years no letter had been 
received from Roger Tichborne ; but in April, 1865, 
defendant begins to write the initials R. T. accom- 
panied with a certain sign or hieroglyphic which 



214 ILLUSTRATIONS IN ADVOCACY. 

Orton always used but which Roger had never used. 
Then there was a pocket-book in which was written : 
"Some men has plenty brains and no money; some 
has plenty money and no brains. Surely the men as 
has plenty money and no brains are made for the 
men as has plenty brains and no money." 

"These are the sentiments," says the counsel 
ironically, "of R. C. Tichborne, Bart." "Then," 
says the document, "Rodger C. Tichborne some day, 
I hope." "But Roger Tichborne never spelt his 
name with a 'D.' " Another entry was, "I Thomas 
Castro do certify that them as thinks that is my name 
don't no nothink about it." Then there was the 
name and address of "Mary Ann Loader, Russell's 
Buildings , Wapping . ' ' 

"How," asks Mr. Hawkins, "could Roger Tich- 
borne have her name and address in his pocket- 
book?" 

Then we have another important matter. At 
Sydney was one Cubitt, who kept a "missing friends' 
office" and issued advertisements. Lady Tichborne 
saw them and wrote to Cubitt. In this letter she 
plays into the hands of Castro by giving certain 
items of information concerning her son and her 
family. She asked Cubitt to make enquiries con- 
cerning Roger, gives his age as 32, says he embarked 
at Rio on the 20th April, and had not been heard of 
since; affirms that part of the crew were saved- 
gives the name of the lost vessel thinks her son 
may have married and changed his name, and asks 
that enquiries should be made. Advertisement 



THE TICHBORNE CLAIMANT. 215 

accordingly issued. Orton at this time being in 
Wagga-Wagga. 

While Gibbes the Attorney was engaged in taking 
Castro through the Insolvent Court, he suddenly 
exclaims "I've spotted you; you are Roger Tich- 
borne; you are advertised for, and if you don't dis- 
close yourself, I shall." 

He had seem the initials, it appears, "R. C. T." 
cut on a tobacco-pipe, and this lead to the remark- 
able discovery. What could poor insolvent Castro 
do, being thus suddenly found out to be a baronet 
in disguise, and heir to thousands a year? Of course 
Gibbes would denounce him to the world. 

This story, be it remembered, of Gibbes' discov- 
ery, was told by the defendant himself. Gibbes then 
writes to Cubitt, and a correspondence takes place 
between that gentleman and Lady Tichborne. She 
gives more information, but says she cannot send 
400 until her son's identity is proved. Then she 
tells him to remember that Roger was three years at 
the .Jesuit College at Stony hurst, and when he was 
nineteen years of age went into the Dragoon Guards, 
where he remained nearly two years : that he passed 
his examination well before he got into that regi- 
ment that he never knew his grandfather Sir 
James's father having died before she married. 
Roger was born in Paris, she continues, and spoke 
French better than English, she believed; and then 
she says, poor deluded creature, "I enter into all 
these details that you may be able to know him," 
and she repeats that she cannot send any money 



216 ILLUSTRATIONS IN ADVOCACY. 

until he has been identified, and that must be in 
England. 

Here is the twilight of Castro's dawning knowl- 
edge of Roger's early life. What a feeble glim- 
mer for ingenious fraud to work by ! But even in- 
genious fraud requires time, so the unfortunate 
baronet wanders about (not able to get any money 
till he is identified) until January 1866, and then he 
writes his first letter to his anxious mother. The 
letter is worth reading. 

"Wagga-Wagga, Jan. 17th, '66. 
"My dear mother. The delay which has taken place 
since my last letter, dated 22nd April, '54" (He 
has got this date from her foolish letter telling Cu- 
bitt the Bella sailed on the 20th), "makes it very 
difficult to commence this Letter. I deeply regret 
the truble and anxiety I must have cause you by 
not writing before ; but they are known to my at- 
torney, and the more private details I will keep for 
your own Ear. Of one thing rest Assured, that 
although I have been in a humble condition of Life 
I have never let any act disgrace you or my Family." 
(He forgets the change of name in consequence of 
the warrant about the horses. ) "I have been A poor 
man and nothing worse. Mr. Gibbes suggest to 
me as essential that I should recall to your memory 
things which can only be known to you and me to 
convince you of my Identity. I don't think it 
needful, My Dear Mother, although I send them 
Manely the Brown Mark on my side and the card- 
case at Brighton. I can assure you, My Dear 



THE T1CHBORNE CLAIMANT. 217 

Mother, I have kept your promise ever since. In 
writing to me please enclose your letter to Mr. 
Gibbes, to prevent unnecessary enquiry, as I don't 
wish any person to know me in this Country when I 
take my proper position and title. Having, there- 
fore, made up my mind to return and face the Sea 
once more, I must request to send me the means of 
doing so and paying a few outstanding debts. I 
would return by the Overland Mail. The passage 
Money and other expenses would be over Two Hun- 
dred pound, for I propose sailing from Victoria, 
not this Colonly, and to sail from Melbourne in my 
own name. Now, to annable me to do this, my dear 
mother, you must send me The remainder 

of the letter was missing. 

This letter came into the defendant's possession 
after Lady Tichborne's death, and was filed by him 
in Chancery. 

"Now," asks the counsel, "what resemblance was 
there in this letter to the letters of Roger Tich- 



borne?" A good question to ask in argument 
as to probability, and destroys an alleged fact. 
Then, he says, Roger Tiehborne never had a brown 
mark on his side; his mother herself said so; and 
she had no knowledge of any card-case at Brighton; 
and she admonished him that the less he said about 
those matters the better. He took her advice, and 
never mentioned them again till he was cross-ex- 
amined. 

** How was it," asks Mr. Hawkins, " that he did 
not allude to any of the early incidents of his life?" 



218 ILLUSTRATIONS IN ADVOCACY. 

How, indeed, since he could have satisfied her of 
his identity by a hundred of them had he been her 
very son. Castro, in the meantime, mentions to 
several persons that he had St. Vitus's dance. This, 
Tichborne never had in his life, but we know Orton 
had this disease. He said he was educated at Win- 
chester, and that he was only in the army thirteen 
days, and was then " bought off." 

But before, Lady Tichborne received the letter she 
actually wrote to him and acknoioledged him as her 
"dearest son Roger" without a single particle of evi- 
dence of any kind. No wonder he began to believe 
in himself. She writes again and again, giving 
" scraps of information which were made the most 
of, and, among other things, mentioned that one 
Bogle was at Sydney." Bogle had been an old ser- 
vant in the Tichborne family. Before leaving Wagga- 
Wagga Castro made his will, and that will has an 
important bearing upon the question as to whether 
he was Orton or Tichborne. He mentions his moth- 
er's name as Hannah Frances, when, in fact, it was 
Henrietta Felicite. It left property at Cowes, where 
no Tichborne property was, and at Hermitage, Dor- 
setshire. There was no such place ; but there was a 
farm called Hermitage in Surrey, which had betn 
acquired after Roger left England. There was men- 
tion of estates at Ryde, where no Tichborne estates 
existed. The executors were John Jones, of Bid- 
ford, an old friend of George Orton, and Lady 
Hannah Frances Tichborne, "my mother," and Sir 
John Bird, of Herts, Bart. , an imaginary baronet. 



THE TICHBORNE CLAIMANT. 219 

The defendant went to Sydney and saw Bogle, who 
gave him information on many points. He got from 
him the Tichborne Crest, and he found the English 
Baronetage. In the will no mention was made of 
Upton, and he said he made the will purposely to 
deceive the bankers to whom he applied for money. 
He told them he was in the 66th Regiment Light 
Dragoons (Blues}. 

Next comes a letter from Lady Tichborne, telling 
him that he and his family were Roman Catholics, 
which rather surprised him, for having forgotten 
he was a Catholic, he had been married in a 
Wesleyan Chapel. This mistake, however, he 
immediately corrects, and, as a true Catholic, gets 
re-married in a Roman Catholic Church in the name 
of Titchborne, which he spelt with two t's instead of 
one. In answer to his mother's letter containing 
the information that he is a Catholic, he writes to 
his " dearest mamma, and may the blessed Maria 
have mercy on your soul," telling her he is grieved 
she did not know his handwriting. 

Not long after this he came home, and "on Christ- 
mas Day, 1866, Arthur Orton once more set foot on 
familiar soil. If Roger Tichborne had arrived," con- 
tinues Mr. Hawkins, "surely he would have eagerly 
sought his friends and relations; the Seymours, the 
Radcliffes, his executor Gosford, and many other 
familiar friends. But Arthur Orton knew none of 
them. There was only one home he was familiar 
with, and that was in High-street, Wapping. There 
he hurried, and knocked at No. 69." 



220 ILLUSTRATIONS IN ADVOCACY. 

"Whose house was that?" asks Mr. Justice 
Lush, by no means intending any dramatic surprise. 
But the answer came with thrilling and sensational 
effect : 

"The house of the late old George Orion, my 
lord I" 

That was truly a memorable knock ! "Old 
George was dead. He had left two daughters 
a Mrs. Jury and a Mrs. Tredgett, and Arthur 
Orton went to make enquiries after them at a 
little public house called the Globe. The burly 
stranger asked after the old inhabitants, and at 
last after the Ortons. He was told the daughters 
were married and gone away, and that the father was 
dead; and then, suddenly, the landlady exclaims, 
* Why, bless me, you are rather like an Orton yourself!' 
'Oh, no, I am not an Orton,' he said, 'but I am a 
friend of the family,' ' You seem to know all about 
the people here,' she replied. 'Ah,' he said, 'I have 
not been here for fifteen years,' which was true, for 
that was about the time Arthur Orton went away. 
Next day, very early in the morning, this illustrious 
baronet was down at Wapping again, making further 
enquiries after Arthur Orton' s sisters. It has to be 
ascertained by him whether they will recognize in 
him their long-lost brother, Arthur Orton. If they 
do not, well and good; but if they do, the voice of 
affection must, if possible, be silenced." 

At this point in the history of the case another 
change occurs, which shows again the mutability of 
human affairs. He is no longer Castro; he is no 



THE TICHBORNE CLAIMANT. 221 

longer Tichborne ; he plays many parts, and now 
comes on as one Stephens, a man he had met on board 
ship on his homeward voyage. He finds out the resi- 
dence of a Mrs. Pardon,the sister of the husband of 
Mrs. Jury. After sending up his card, on which he had 
written "Australia," Mrs. Pardon came to him, and 
in answer to his enquiries for the sisters, said, * Why 
you look like an Orton yourself.' 'No,' said he, 'I 
am not one of the Ortons, but I am a very great 
friend of Mrs. Tredgett's brother.' He gave her a 
letter for Mrs. Tredgett. The letter is sent in, and 
Mrs. Tredgett appears. The letter was as follows : 

Wagga-Wagga, N. S. W., June 3rd, '66. 
"Mr DEAR AND BELOVED SISTER, It many year 
now since I heard from any of you. I have never 
heard a word from any one I knew since 1854. But 
my friend Mr. Stephens is about starting for Eng- 
land, and he has promised to find you all out, and 
write and let me know all about you. I do not 
intend to say much, because he can tell you all 
about me. Hoping my dear sister will make him 
welcome, ' has he is a dear friend of mine, so 
good-bye, 

ARTHUR ORTON.'* 

.):( 
M" 

It ends with the same dots and a letter as in his 
letters to Mary Ann Loader. Stephens had never 
seen the man until he was on board the ship." 

On the 26th December he writes again, and asks 
for further information concerning the Ortons and 



222 ILLUSTRATIONS IN ADVOCACY. 

Miss Loader, saying also that she will hear some- 
thing to her advantage. , The address was Post 
Office, Gravesend. The sister believed him to be 
Orion, and had asked for his portrait; so in a 
feigned hand he writes on the 7th January, 1867, 
and says: 

"DEAR MADAM I received your kind letter this 
morning, and very sorry to think you should be so 
much mistaken as to think I am your brother. Your 
brother is a very great friend of mine, and whom I 
regard has a brother. And I have likewise promised 
to send him all the information I can about his 
family. I cannot call on you at present, but will do 
so before long. I sent your sisters a likeness of your 
brother's wife and child this morning. I should 
have sent you one, but I have only one left, which 1 
require for copying. I have likewise one of himself, 
which I intend to get some copy of. I will then 
send you some of each. My future address will be 
R. C. T., Post-office, Liverpool. Hoping to have the 
pleasure of making the acquaintance of my friend's 
sisters before long. I remain, yours respectfully, 

W. H. STEPHENS." 

Having written these letters, the defendant "sub- 
sequently denounced them as forgeries, and then in 
the witness-box was obliged to confess that he had 
written them. Besides this, he sent the portraits of 
his own wife and child as that of Arthur Orion's wife 
and child." An awkward circumstance if he was 
Tichborne, and Arthur's wife and child were his ! 
The sisters also recognized the handwriting of Ste- 



THE TICHBORNE CLAIMANT. 223 

phensas that of Arthur Orton. -So he writes Arthur's 
handwriting, and has Arthur's wife and child. He 
swore that the object in going to Wapping was to 
find out about Arthur Orton, and when he swore this, 
the letter purporting to be brought by him from Arthur 
had not been seen by his solicitor. There was this 
further remarkable fact that he concealed these visits 
to Wapping from his legal advisers. He writes to his 
friend Rous on the 20th October, 1867: 

"We find the other side busy with another pair of 
sisters for me one of them been to see Mr. Holmes. 
They had been three days at them, and they are 
quite sure of success. Only there is this difference, 
which they cannot make out. The brother of them 
young womans is very dark, and very much marked 
with the small-pox very much about the face. But they 
are still very sure I am him. I wonder who I am to 
be next? the man they think I am is still living in 
Wagga-Wagga under an assumed name. They say 
I was borne in Wapping. I am glad they have found 
out a Respectable part of London for me. I never 
remember having been there ; but Mr. Holmes tell 
me it a very respectable part of London. R. C. D. 
TICHBORNE." 

We are then told that the defendant for some 
time keeps in hiding; "dare not face even the poor 
old lady herself without some little knowledge of the 
old place. So he left his wife and children behind 
and went down to Alrcsford to look at it. He put 
"R. C. T." upon his trunks, no doubt as a suggestion 
or invitation to recognition. If he had been the real 



224 ILLUSTRATIONS IN ADVOCACY. 

man, why did he not go down boldly in his own name 
and declare himself? Why did he not go to his 
attorney, or to his father's or to his old friend and 
executor? Instead of this he goes to an obscure 
public-house, and keeps himself quite concealed. 
Then he gets hold of the publican takes him for walks 
round the Tichborne estate, and gathers from him 
all the information he can." 

Now, you will observe, the learned counsel has 
arrived at a point in the case where it is advisable to 
show the means the defendant employed to obtain 
what many persons thought so wonderful, the knowl- 
edge he possessed of the persons and incidents con- 
nected with the Tichborne family . 

Lady Tichborne, in her imbecility, was first; 
Bogle was next ; and now comes the publican. It 
was quite time to obtain the assistance of a solici- 
tor, so he employed Mr. Holmes. Mr. Gosford 
went to Gravesend to see him, but he refused to be 
seen. Mr. Gosford went again ; saw him, put ques- 
tions to him, and told him he was not Roger Tich- 
borne. Then the defendant writes to Rous in these 
terms: "If my solicitor, Mr. Holmes, writes to you, 
give him any information you can, and depend upon 
perfect secrecy between us. 

"Who was Mr. Rous?" asked the counsel. The 
question is very well placed, and the answer 
extremely important as clearing much ground in the 
future. It could not have come at a better time. 
"An old clerk of Mr. Hopkins," says Mr Hawkins; 
"the old family attorney, acquainted with the family 



THE TICHBORNE CLAIMANT. 225 

estates. Rous could give him much information 
about them, and it was all important to obtain such 
information before the claimant faced Hopkins him- 
self, as he would have to do. Hence the application 
to Rous, and hence the hint as to secrecy." 

He then goes with a brewer's clerk and his attor- 
ney to see Lady Tichborne in Paris. 

"Unable," says Mr. Hawkins, "to relinquish her 
long cherished idea that her long-lost son was yet 
alive, she still had received from him such false par- 
ticulars as might well have raised a doubt in any 
rational mind. Still, she refused to doubt. He had 
talked about his grandfather, whom Roger had never 
seen. He said he was a private, whereas Roger was 
an officer; that he was educated at Winchester 
instead of Stonyhurst ; that he had had St. Vitus's 
dance, which Roger never had. 'He confesses every- 
thing as if in a dream,' she wrote ; 'but it will not 
prevent me from recognizing him, though his state- 
ments differ from mine.' This was the poor bewil- 
dered old lady, who was now to be confronted with 
her long-lost son in the company of two strangers, 
one of them an attorney I He did not go to see her; 
she had to come to find him, and she found him 
lying on a bed." Must have been rather a strong 
maternal instinct, one would think, to recognize her 
son through the bedclothes ! 

This was her meeting with her long-lost son. 
Then is given the defendant's own account of this 
affecting interview. 

"I was lying on a bed, and my mother was stand- 



226 ILLUSTRATIONS IN ADVOCACY. 

ing alongside of me. I cannot say who spoke first. 
We conversed a long time. / cannot say if she rec- 
ognized me at once or after a time, or wJiat. There 
were others in the room who will be able to 
give a better account of it than me Mr. Holmes 
and Mr. Leete (the brewer's clerk) and Dr. Shiinp- 
ton. / believe we were both affected at the interview. 
She did not express any doubt about my being her 
son. Oh, no, not in the slightest." Such was this 
first interview between mother and child. He 
remained three days in Paris, and then returned to 
London. Mr. Holmes obtained for him the Tich- 
borne pedigree and the Army Gazette containing the 
dates of Roger's military life, and a copy of the 
Tichborne will, disclosing most important particu- 
lars as to his affairs. 

Soon after this Gosford met the defendant, and 
said "If you are Roger Tichborne, you can't have 
forgotten the sealed packet deposited with me. What 
were the contents of it ? " 

The defendant could not say. The probability, of 
course, is, that if he had been Roger he could have 
told at once, and so have convinced Mr. Gosford of 
his identity. The defendant, in the course of time, 
we are told, filed an affidavit in Chancery, giving an 
account of the wreck of the Bella, his rescue, and 
voyage to Australia. But "his affidavit was a tissue 
of gross and revolting absurdities. ' ' That is somewhat 
stronger than saying it was a tissue of falsehoods, 
because the absurdities would speak for themselves, 
so would the falsehoods, but they would have to be 



THE TICHBORNE CLAIMANT. 227 

disproved, while absurdities would not. Falsehood 
or not is a matter of belief; absurdity or not is a 
matter of common sense and sight. In order to pre- 
pare himself for cross-examination, the defendant 
next obtained possession of all the letters of Roger 
that could be laid hold of. 

In the meantime he was corresponding with the 
Ortons, and giving them money. "Whenever they 
wanted money," he said, " I sent them some." 
"Charles Orton, brother of Arthur, was carrying on 
business as a butcher at Hermitage TFAa//,Wapping. 
He, being poor, communicated with the defendant, 
and from him received letters and money; 5 a 
week, at first in the name of Tichborne, and then in 
the name of Brand. This continued up to Septem- 
ber, 1868, so that Tichborne in his communications 
with Charles Orton becomes Brand. Rumors arose 
that he was supporting the Ortons, but he wrote to 
Holmes in October, 1868, distinctly denying that he 
sent them money. The correspondence was burnt at 
defendant's instance, and he got Charles to sign a 
declaration saying he was not his brother. Here you 
see blood must have been very strong to require a 
declaration. But he could never get Charles to 
swear the denial. In October, 1868, he ceased to 
make provision for him, and Charles went to the other 
side and told them the truth about the matter. Then 
the defendant made an affidavit, in which he swore 
"I did not know any of Arthur Orton' s family 
until the year 1868, when, in consequence of rumors 
which reached me, I called upon his sisters, whom I 



228 ILLUSTRATIONS IN ADVOCACY. 

then saw for the first time. They both made an 
affidavit that I am no relative of them, and that I 
am not their brother Arthur, whom they last heard 
from in a letter dated August last from Western 
Australia" 

" Who would imagine from this," asks the learned 
counsel, " that he had been long in communication 
with them; that he had been giving them money; 
that his^rs^ visit on his arrival in England (Christ- 
mas Eve, 1866) was to enquire after them ; and that 
for two years he had been in constant communication 
with them?" 

Who, indeed? Not the jury, one would suppose. 

And here ends the third day of Mr. Hawkins' 
speech. And what a distance he has traveled ! what 
a multitude of facts he has collected and arranged ! 
Not one, so far as I can discover, out of place ; not 
an episode in the whole case but is appropriately 
inserted. Surely no speech was ever better planned. 
You may walk over the ground he has traversed and 
find your way to any point without the slightest 
difficulty. Do you want Valparaiso? There are 
landmarks in the facts he has narrated which will 
take you direct. Do you want Hobart Town? There 
are the Jurys, the note of hand and the date, 1855. 
Do you wish to see him at Gippesland? Mr. John- 
son will take you. Dargo? There's a document 
dated and signed. Sale? Mr. Hopwood knows all 
about it, and so he does of Wagga-Wagga. Do you 
wish to see when and wherefore he changes his name 
to Castro? You'll find out at Mellipilla how he gets 



THE TICHBOKNE CLAIMANT. 229 

the name, and from Hopwood why he changes it. 
And so, after this opening you may, with the utmost 
ease, shift scene after scene and see the defendant 
pursuing his vocations, and even get occasional 
glimpses of him in the obscurity of the bush, where 
he wanders like a dark and suspicious figure in the 
pathless wilderness of unrevealed mysteries: un- 
revealed, except by his own inadvertent observa- 
tions, which shed a momentary glimmer on the 
scene, and show that he was engaged in business 
which only those with whom he consorted could 
divulge. Never was a figure more clearly traceable 
from point to point and from name to name. And it 
may fairly be said of him that when he takes the 
greatest pains to conceal his identity his identity 
stands most clearly revealed. It is strange that 
there is no point of contact between these two 
men. They never even cross each other's path, and 
there is scarcely a movement of either man in which 
you can mistake for a single moment the identity of 
the person. It is as impossible to confound their 
actions as it is to assimilate their minds and charac- 
ters. 

In the next chapter the learned counsel dwelt upon 
that part of the defendant's history which related to 
Chili. 

"My case," he said, "is that Orton left Chili two 
years before Roger left England. It was necessary 
for the defendant, while making his claim, to write 
to Castro in Mellipilla to prepare him for the enqui- 
ries that would inevitably be made. So he writes 



230 ILLUSTRATIONS IN ADVOCACY. 

to say that he has got very fat and his relations dis- 
pute his identity ; tells him he made use of his name 
in Australia, and never disgraced it in feats of horse- 
manship." 

Commenting on all this, the learned counsel ob- 
serves: "Orton left England for Chili in the early 
part of 1851, came back to Wapping, and left at the 
end of 1852 for Hobart Town, Roger Tichborne did 
not leave England until February, 1854; so that 
when the defendant speaks in his letter of being the 
same person whom Castro knew seventeen years ago, 
he overruns himself by at least two or three years." 
That is a point of immense importance, which the 
jury note. 

Now comes a letter which, the learned counsel 
says, "speaks volumes." It was from the real Cas- 
tro, of Mellipilla, in answer to one from the defend- 
ant, who had signed his name as Tichborne. As the 
letter is described as a "crucial test" as to who the 
defendant really was, it is read and its main point 
commented on in these words: "See what it con- 
veyed to the mind of the man who received it ! 4 I 
have received from you a letter, signed Tichborne ; 
I assume it is your name ; but the man who was 
staying here bore the name of Orton, and described 
himself as the j$on of a butcher; but there is nothing 
in that, and you may have mistaken the two Span- 
ish words canciller and carnii-ero the one meaning 
chancellor, the other butcher. "' 

Next Holmes writes to Castro asking him whether 
he really knew Orton or whether Barra, the agent 



THE TICHBORNE CLAIMANT. 231 

of the Tichborne family, had mentioned the name 
to him first. He says also that he has clear evidence 
that Orton is in western Australia. The answer 
came that, although the defendant "had borne the 
names Arthur Orton he had stated they were not 
his own ; that he belonged to the English aristoc- 
racy, and that he had played with the Queen's 
children." Presumably, while his father was Chan- 
cellor. 

The defendant had repeatedly on oath denied that 
he had ever passed as Arthur Orton. 

It is next proposed that the defendant should go 
to Chili to be seen by the people there. He is 
reluctant, but consents; and, in the meantime to 
prepare Castro for the interview, Holmes writes and 
tells him that "his client has completely gained his 
suit in the Court of Chancery." 

Then the defendant writes to Castro, "/ have 
never passed under the name of Orton, so do not 
allow my opponents to persuade my friends that 1 
have." 

Holmes also writes to Castro and says: Orton's 
brother and sister have seen Sir Roger, and declare 
he is not Arthur, and that the proceedings are the 
result of malice." He also sends a portrait of "/Sir 
Roger " this, of course, being the defendant's own 
likeness. So all is arranged for Sir Roger's depart- 
for Chili to be seen by the Chilian witnesses. 

"And now," says the counsel, "you will see how 
he met them. There were two commissions for 
taking evidence one in Chili and one in Australia; 



232 ILLUSTRATIONS IN ADVOCACY. 

he got that for Australia postponed, on the ground 
that he desired to attend the Chili commission. He 
swore that he was advised to do so very good 
advice and very necessary, if the man were really 
Sir Roger. But the defendant never meant to follow 
it. He sailed indeed, and arrived at Rio in Octo- 
ber, 1868 ; from Rio he and his companions went to 
Monte Video, but there they separated, his compan- 
ions to follow their pre-arranged course by sea to 
Valparaiso, while he preferred to go by land. It 
was very necessary for him to do so. for this was a 
journey Sir Roger had taken and he had not. fie 
intended to study the route from Rio to Valparaiso, 
but had no idea of ever presenting himself there. 
Conscious that he was Arthur Orton, he took care 
never to stand face to face with Castro. So he 
never went to Chili after all. The commission was 
delayed till December, but he never came. The 
evidence was taken in his absence, but in the pres- 
ence of his counsel. From that time the defendant 
had no communication with Castro or any of his 
Chilian friends. 

Having got thus far with the case ; having traced 
his sinuous course till "the burly stranger knocked 
at the door of the late George Orton, my lord," 
and having shown his suspicious and false dealings 
since that memorable knock, the learned counsel 
now takes up evidence which comes in here like 
the capital on a pillar. His edifice is nearly com- 
plete. He is not about to deal with evidence 
which his own witnesses are to prove, but with 



THE TICHBORNE CLAIMANT. 233 

that which comes from the mouth of the defendant 
himself. Evidence not to be contradicted or ex- 
plained away, and which will remain forever as 
facts fitting in with the case for the prosecution, but 
by no manner of means capable f finding a resting- 
place in that of the defendant. This part, therefore, 
will be complete in itself, and finds its appropriate 
position in this part of the opening. This evidence 
consists in certain answers of the defendant in his 
cross-examination by Sir John Coleridge, contra- 
dicting many absolute irrefutable facts, and dis- 
closing such astounding ignorance of the prominent 
features of Roger's life, that the idle tale will 
appear utterly unbelievable upon these admissions, 
even before other evidence in proof of the imposture 
can be given. 

In this cross-examination came the defendant's 
account of the contents of the "sealed packet" 
which he foolishly and wickedly connected with 
the alleged seduction of his cousin "the most foul 
and detestable perjury ever committed," says Mr. 
Hawkins. The paper deposited was this: 

Tichborne Park, June 22wd, 1852. 

"I make on this day a promise that if I marry 
my cousin Catherine Doughty this year, before three 
years are over at the latest, to build a church or 
chapel at Tichborne to the Holy Virgin, in thanks- 
giving for the protection which she had thrown over 
us, and in praying. God that our wishes may be ful- 
filled. 

"R. C. TICHBORNE." 



234 ILLUSTRATIONS IN ADVOCACY. 

In the witness-box the defendant had feigned a 
reluctance to disclose it. Mr. Hawkins pertinently 
askes "why?" There has been two copies of this 
document; one was given to Mr. Gosford and the 
other to Miss Doughty. The defendant did not 
know that one had been given to her, and, finding 
out that Gosford's was destroyed, and thinking no 
copy of it could be produced, he, in February, 1868, 
made an affidavit, in which he says, "that before 
leaving England in March, 1853, I placed in the 
hands of Gosford the document, with instructions 
not to open it except in certain events, one of which 
I know has not happened and the other I hope has 
not happened." 

The engagement, be it remembered, was broken 
off between the cousins in 1852. He was asked 
what the first event was. He answered: "My retnrn 
before my marriage." He was pressed upon the 
point and then said, "I don't know; I think it was 
my death. 

He was then asked as to the other. He professed 
extreme reluctance, but at last said, t( -the confine- 
ment of my cousin !" He was asked solemnly," 
says Mr. Hawkins, "do you mean this lady sitting 
beneath me?" 

"Yes." 

"Do you mean to swear that you seduced this 
lady?" 

He answered, "I most solemnly to my God swear 
it!" 

"When?" 



THE T1CHBORNE CLAIMANT. 235 

"In July or August, 1852." 

In August, 1862, the defendant gave his attorney 
the following as the document he had deposited with 
Gosford: 

"In the events of my father being in possession 
before my return, or dying before my return, he 
(Gosford) was to act for him according to instruc- 
tions contained in the document. In the first place, 
he was to have Upton to live at and there to manage 
the whole of the estate. He was to keep the farm 
in hand and show the greatest kindness to my cousin 
Kate and let her have anything she required. My 
cousin gave me to understand she was enciente, and 
pressed me very hard to marry her at once. I did 
not believe such was the case, nor have I since heard 
it was. I always believe it was said to get me to 
marry her at once. For this my father tried to per- 
suade me. It also refers to the village at Prior Dene. 
He (Gosford) was to have the cottages repaired and 
also to improve the estate in general. Was also to 
make arrangements for Kate to leave England if that 
was true. Both Gosford and wife pressed me very 
hard to marry her at once. I do not think Mrs. 
Gosford knew about Kate. 

"R. O. D. TICHBORNE." 

Pressed at the first trial to give his recollections 
of it, he wrote the following: 

"If it be true that my cousin Kate D should 

prove to be enciente you are to make all necessary 
arrangements for going to Scotland ^ and you are to 
bee that Upton is properly prepared for her until I 



236 ILLUSTRATIONS IN ADVOCACY. 

return or she marries. You are to show great kind- 
ness to her and let her have everything she requires. 
If she remains single until I come back I will marry 
her. In the event of my cousin's death you arc to 
take charge of the estates on my behalf, to keep the 
home farm and to repair the cottages at Prior Dene. 

"K. C. D. Tichborne." 

This incredible story was to be disproved by 
evidence ; not merely by evidence which added to 
the improbabilities, but which would prove it to be 
impossible to be true. And this would be accom- 
plished by means of dates to which the defendant 
had been pinned. Then the learned counsel mar- 
shalled facts and dates in the history of Roger which 
proved the impossibility of the defendant's story being 
true. Not only would the story be proved impossible 
out of the defendant's own mouth, but it would be 
contradicted by a body of trustworthy evidence 
which could not be disbelieved. "If this evidence 
will not satisfy the jury," said the learned counsel, 
"I declare to God I do not know what evidence 
would be required, or by what evidence a lady of 
honor and character could vindicate her virtue against 
a foul aspersion." 

No wonder the learned counsel rose to this height, 
seeing the issue which loomed through this dark 
cloud of lies. It was not merely whether the de- 
fendant was Tichborne, but whetheralady, hitherto 
regarded as a virtuous woman, would be degraded, 
and perjured in the eyes of the jury, her husband, 
her children ancl the world. So, says Mr. Hawkins, 



THE TICHBORNE CLAIMANT. 237 

not liking to leave this point without thoroughly 
exhausting everything he could say upon the subject, 
he will prove by Roger' s letters that he was not at 
Tichborne at that time or anything near the'time 
when the seduction was alleged to have taken place. 
After a certain date, which was long before the time 
alleged by the defendant, Roger never was at Tich- 
borne again. The sealed packet was given to Gos- 
ford in January 1852, while defendant in his affidavit 
swore it was November, 1852. 

Next came the incredible story of the wreck, in 
itself an impossibility, as told ; and let the reader 
bear in mind that no true story can have an impossi- 
bility in it a false story frequently has. 

Then came another impossibility. Roger's letters 
showed that he could never have been at Mellipilla ; 
but Orton undoubtedly was, and his presence there 
gave birth to the Castro episode. In 1854, Roger 
sent home two daguerreotypes, and they were in the 
possession of Tichborne family ; yet the defendant 
denied that he had ever sent them a strange and 
short sighted denial truly ! 

Now comes another point relating to the wreck. 
During all the nineteen years that had elapsed since 
the loss of the Bella, no living being had ever been 
heard of as having been saved. The ship that, 
according to the defendant's account, had saved 
him was the Themis, which was changed to the 
Oxprey, because, doubtless, he had learned that an 
Osprey had reached Melbourne about the time that 
would have fitted in with his story. But there are 



238 ILLUSTRATIONS IN ADVOCACY. 

other things required to fit in with such a story 
before it can be accepted as true, and to these the 
learned counsel calls the attention of the jury. 
First the size of the vessel, as stated by the defen- 
dant, was as large as the Bella 1800 tons but the 
Osprey that came to Melbourne was a little vessel 
under 100 tons; it had no passengers and only a 
small crew, while the defendant's Osprey had a 
crew of ten men. He was asked the names of the 
captain and the crew, but he could not give one. 
He was pressed in cross-examination, with this 
remarkable result, that he gave the names of J. 
Lewis, J. Peebles and Owen David Lewis, which, 
strange to say, were the name of the men on board 
the Middleton Orion's vessel in 1852 ! What a 
poor uninventive mind I And yet what a remarka- 
ble memory he must have had ! On reaching Mel- 
borne he said he gave the captain a check, which 
had reached home and been acknowledged by his 
relatives as genuine, but had been dishonored. 
This was all self-evidently untrue, and required no 
reasoning upon whatever, but it was as well to give 
the defendant's own version, which was as follows : 

" Mr. Hopkins told me that during my absence a 
check came to Glyn, and that the money had been 
taken from Glyn's previously. The check was sent 
to Hampshire, and Mr. Hopkins got it. He told me 
it was between 17 and 18. He sent it to Mr. 
Greenwood, who acknowledged it was mine, but it 
was dishonored." 

It was necessary for him to dishonor it, other- 



THE TICHBORNE CLAIMANT. 239 

wise the bankers' books would have been in his 
way. But the counsel deals with it in one argu- 
ment: ' This was all a fabrication and an absurd 
fabrication, for, of course, had any such check 
really arrived, it would have shown that he was 
alive." 

Moreover, the log-book of the Osprey contained 
no account of the picking up of a shipwrecked 
passenger, or any reference in any way to such an 
incident of her voyage as he described. But the 
defendant had tried to meet this impossibility by 
another he said it was another Osprey, and then 
he said it must have been the Themis; but he 
further swore that eight sailors were saved with him. 
Not one of these had ever been heard of. 

It was thought proper to give the jury the key to 
the story of the 17 to 18 check, and it was this: 
the defendant had heard that the Themis had picked 
up a shipwrecked man at sea, so this poor ship- 
wrecked Claimant, driven to his wit's end, and 
eager to catch at any straw, goes down to Liverpool 
to see the owner, and is so elated with his success 
that he writes: 

"It is now beyond a doubt it was the 'Themis' 
picked me up. The owners and agents are doing all 
they can to find me evidence." 

So the log-book is entrusted to one of the defend- 
ant's agents, but, strange to say, there was no 
trace in it of any shipwrecked passenger having 
been saved. It was, however, discovered that a 
ship called the Themis had taken a second-class 



240 ILLUSTRATIONS IN ADVOCACY. 

passenger to Melborne, who had disappeared after 
giving the captain a check for 17 to 18. This 
was the origin of the story of the check. But in a 
short time " the mate of the Themis turned up, and 
declared it was all wrong, and then the Themis was 
dropped, and the Osprey taken up again." 

As to the life in Australia, the defendant admitted 
that he had changed his name to Morgan, but 
declined to say why, on the ground that it might 
tend to criminate him; that he knew Arthur Orton, 
who had changed his name to Alfred Smith, because 
"he had done something not in accordance with 
law." "He admitted that his friend was charged 
with bushranging, which meant highway robbery; 
and on being asked if he was charged with Orton 
for that offence, he declined to say. He admitted 
his intimacy with Morgan, a bushranger, shot in 
1865, and his intimacy with another bushranger 
named Tote. He was also charged in the name of 
Orton with horse stealing. This he admitted. "What 
more," asks the learned counsel, " need I say?" 

Just one or two words, perhaps. Upon Roger 
there were tattoo marks not found upon this man, 
and upon this man there were fabricated marks, 
which never had existed on Roger. All the differ- 
ent physical peculiarities were referred to which 
existed in Roger, and which did not exist in the 
defendant; so that, according to the description, no 
two men could be more dissimilar with regard to 
unchanging signs of identity; one important sign 
being that the ears of Roger adhered closely to his 



THE TICHBORNE CLAIMANT. 241 

cheeks, while this man had pendant lobes. So hav- 
ing contrasted the two men's personal peculiarities, 
as he had contrasted their histories, manners, char- 
acters, sentiments, education and minds, he con- 
cludes with a peroration useful to the student as a 
study of the arrangement of a case. His last 
observation was as to handwriting, which he said 
could not deceive. The defendant's writing and 
spelling were writing and spelling exactly resem- 
bling Arthur Orton's, but totally dissimilar to the 
writing and spelling of Eoger Tichborne. 

It was true that he had endeavored to imitate 
Roger's writing after he had come to England, and 
after he had written to the dowager, saying "7 
hope, you have got some of the letters; 1 " but that 
would not affect the judgment of the jury in any 
way, except by showing that the apparent resem- 
blance of these later letters was the result of imita- 
tion. He then concludes: 

" Gentlemen, I have shown you the life, habits, 
education, the correspondence, the sentiments, the 
dealings of Roger Charles Tichborne, whom the de- 
fendant is charged with fraudulently attempting to 
personate. I have shown you also the life, habits, 
education, correspondence, conduct and career of 
Arthur Orton, whom we allege this man to be. No 
two persons could be possibly more unlike each 
other. I have also called your attention to the 
various accounts given by the defendant of his past 
life and career. How he would have you to believe 
that this high-born English gentleman, who had 



242 ILLUSTRATIONS IN ADVOCACY. 

rank and fortune at his command, descended so low 
as to forget every tie of duty and sacred affection 
towards those to whom he owed both ; how, with 
birth and education, which would have enabled him 
to move in the highest station of society, he chose to 
associate with slaughtermen, highwaymen and 
thieves; how, from a man of honor and truth, he 
condescended to become a trickster and a knave; 
how, with audacity unparalleled for his own ends, 
and to cover his ignorance of the one tender secret 
of the man whose name he had assumed, he did not 
hesitate to impute to him the baseness, ingratitude 
and cruelty of assailing the honor of an English 
lady. I have shown you, moreover, how the de- 
fendant would have you believe that, with a memory 
said to be so marvellous as to enable him to relate 
with accuracy the most puerile trifles, he has never- 
theless forgotten his own mother tongue, and has 
become oblivious of events which, once known, could 
never have been effaced from the memory of the 
man who had witnessed them. I have called your 
attention to the mass of living testimony which I 
propose to offer to you. I shall lay before you also 
the evidence of the dead. In December last the late 
Lady Doughty, with intellect unclouded, closed her 
eyes in death. She ended her days in peace, and 
ere she died, in the hour of death, and with the con- 
sciousness that in a few short moments she would 
enter into the presence of her God, to whom she 
swore, she recorded her oath that the defendant was 
not the man he had falsely sworn himself to be. 



THE TICHBORNE CLAIMANT. 243 

With such testimony, added those inferences which 
I invite you to draw, as reasoning men, from mat- 
ters which I have called your attention, I believe I 
shall abundantly satisfy you that the defendant is 
not Roger Charles Tichborne, as he has falsely 
sworn himself to be, and that he is Arthur Orton, 
whom I allege him to be; and, lastly, that in this 
foul aspersion which he has made on the character 
and reputation of the lady whose name has been so 
often mentioned, he committed perjury the most 
daring and detestable. 



244 



CHAPTER XVII. 

MR. HAWKINS' CROSS-EXAMINATION 
IN THE TICHBORNE CASE. 

THE CROSS-EXAMINATION OF "OLD 
BOGLE." 

MANY readers, when they see the heading of this 
page, will wonder who "Old Bogle" was. Very few 
persons comparatively have read the Tichborne case, 
or know the Tichborne story. They will think prob- 
ably it means the "old gentleman" himself. If it 
did, I believe Mr. Hawkins could have effectively 
cross-examined him. But if the thoughtful reader 
has perused the analysis of the opening speech in the 
prosecution of Orton he will know that Old Bogle 
was an old black servant of the Tichborne family; 
that he was at Sidney at the time Castro commenced 
to make his claim to the estates; and that Roger's 



MR. HAWKINS' CROSS-EXAMINATION. 245 

mother, "the poor deluded creature," had written 
and told Castro that fact. It was from Bogle the 
Claimant obtained almost his earliest information of 
the family of the Tichbornes. 

The cross-examination of this witness is interesting 
from many points of view. It affords specimens of 
artistic workmanship and of variations of style em- 
ployed for the purpose of producing different effects, 
but always with the view of minimising his evidence 
or discrediting it by eliciting contradictions. I shall 
give only two illustrations, opposite in their character 
and widely different in their objects; the purpose of 
the one being to lay before the jury the sources from 
whence the alleged imposter obtained the knowledge 
which he undoubtedly possessed of many incidents in 
the Tichborne family ; the design of the other being 
to break down the witness on the ground of his 
unreliability, and especially when speaking to the 
identity of the Claimant,, and the circumstances 
attending the earlier years of Roger's life. The 
reader will see how humor and ridicule may some 
times be made to play an important part in cross- 
examination. The following is the general nature of 
the evidence the cross-examination was directed to 
elicit: 

1. That Bogle and his son had been ever since 
their return to England dependants on the Claimant 
for wpport ; that they had shared his home and lived 
upon his hospitality; and therefore the natural 
inference would be at the outset that Old Bogle was 
a zealous and prejudiced partisan. 



246 ILLUSTRATIONS IN ADVOCACY. 

2. Bogle's intimate knowledge of the Tichborne 
family and its history; his acquaintance with innu- 
merable details of the life and character of Roger ; 
his recollection of the minor incidents of Roger's 
childhood and boyhood up to the period of his leav- 
ing England on his ill-fated expedition. 

3. His intimate knowledge of the situation and 
character of the Tichborne estates ; of Upton ; of the 
rooms in Tichborne House, their furniture and 
pictures; of the names of Roger's nurses and the 
neighbors with whom he had been acquainted ; even 
the trivial and minuter details were to be shown as 
within his powerful recollection, such as the kind of 
frocks the child wore, and the childish frolics he 
used to indulge in. 

All this would be of immense importance, as the 
reader will see, as so much stock-in-trade to a man 
who was about to set himself up in the business of 
personating that child grown into manhood. It had 
been said over and over again by persons who had 
not read the case, and their name was legion, 
"This must be the right man, or how could he have 
known all these things" 

This is precisely what Mr. Hawkins's cross-exam- 
ination is about to be directed to namely, to show 
that the Claimant's knowledge was the knowledge of 
Old Bogle, and not his own in reality; and if I mis- 
take not, it will show that the pretended recollection 
of the Claimant, is not the recoUeotion of a child 
grown into a man, but of one who was a man when 
the incidents occurred! The claimant, as I read the 



MR. HAWKINS' CROSS-EXAMINATION. 247 

evidence knew somewhat more than he would have 
recollected if he had been the real Roger. He recol- 
lected with the crammed mind of a man and not 
with the artless memory of a child. Hence we have^ 
another category of objects to which the cross-ex- 
amination was directed. It was this: 

Godwin's Farm and its occupants. 

Old Etheridge, the blacksmith of Upton. 

The Nobles, who kept the "Dairy Farm." 

Mr. Baigent, who called himself "a connection 
of the Tichborne family," and came to clean the 
pictures to wash, in fact, the faces of remote 
ancestors. 

Mr. Hopkins, the family lawyer. 

Mr. Slaughter, and many others. 

All these had doubtless been known to the boy, 
but they were far better known to Old Bogle, and 
his recollection of them would be keener than that 
of thb real man, who knew them only as a child. 
Just imagine for a moment a clever cunning man 
like the Claimant gathering materials from so bound- 
less a store as this, and can you wonder that he 
should show a surprising knowledge of some inci- 
dents in Roger's early life? 

Then came another group of things which Bogle 
was asked about and gave information upon, show- 
ing again the acquired knowledge of the man, and 
that of the most minute and circumstantial kind, 
such as no grown-up child would recollect. 

Miss Doughty' s bay mare, Roger's dog "Spring" 
Powell, who taught Roger the French horn, and the 



248 ILLUSTRATIONS IN ADVOCACY. 

visits of Lady Tichborne to the family seat. Bogle 
also knew the Wangles, Walter /Stickland, a friend 
of Eoger's, Tom Muston, the groom ; Moore a ser- 
vant; Carter, another servant and McCann. He has 
also heard of Clarke, Koger's servant in Ireland hav- 
ing been killed a most important fact for Roger to 
remember, even if he had forgotten the name of the 
man who had given him a lesson or two on the 
French horn, or had forgotten the name of one of 
the grooms, or those of the other servants, with whom 
he would not be familiar, although Bogle would. So 
it was a good thing in the cross-examination that 
Old Bogle let slip the fact that he had heard all about 
Roger's servant having been killed. And let the 
reader note where it comes in all in the midst of a 
lot of unimportant matters of detail which are 
poured upon him like corn out of a sack. Poor 
Old Bogle 1 He didn't think he was doing any harm. 
Even the French horn did not seem to him an 
instrument out of which anything could be made to 
turn against the Claimant; "because," thought Bo- 
gle, "Roger ought to recollect about the French horn 
he couldn't forget it," although it was mixed up in 
cross-examination with such variety of small mat- 
ters as tended to show whose memory it was 
Bogle's or the boy's. 

Thus the cross-examination was directed to the 
sources from whence the Claimant obtained the in- 
formation which he so adroitly used to prove he was 
the heir to the estates. 

The next point in the cross-examination was to 



MB. HAWKINS 1 CROSS-EXAMINATION. 249 

show that after Bogle left England and took up his 
residence in Australia, his two sons followed in the 
course of two or three years, bringing with them 
information up to date. 

It was one of these two sons, Andrew, who, as the 
cross-examination shows, gave the witness a piece of 
paper. This paper showed clearly enough that when 
Old Bogle went to the hotel where the Claimant was 
staying in Australia he went to greet Sir Roger rather 
than to ascertain whether or no it was he. He went 
"possessed with the idea" that the person he was to 
meet was in fact the veritable Roger ; and then one 
of two things must follow if he went as a rogue to 
assist in the perpetration of a fraud, he would will- 
ingly communicate all he knew of the family and 
estates, and if he went as a fool he could easily be 
drawn by a cunning impostor to impart the same 
information. 

Then we get the cross-examination as to Bogle's 
first interview with the Claimant, and a very interest- 
ing cross-examination it is from an advocate's point 
of view. 

"You knew the defendant at once?" asks Mr, 
Hawkins. 

"Yes," answers Bogle. 

"He was exactly like?" 

"Yes; I knew him from his likeness to his 
uncle." 

"And that was how you recognized him?" 

"Yes." 

"At first sight?" 



250 ILLUSTRATIONS IN ADVOCACY. 

"At first sight." 

"Not from his likeness to Roger?" 

"Not exactly." 

There's a good deal of difference between him and 
Roger, is there not?" 

This question was a sort of petard, and Bogle, 
having been got ready by the previous questions, 
must be hoisted upon it, struggle as he may ; he 
struggles thus : 

"He is stouter," says Bogle. 

"A great deal stouter?" repeats Mr. Hawkins. 

"No; not a great deal." 

"What, was Roger stout?" The "what" startles 
Bogle. 

"No." 

"Was he thin?" 

"Yes." 

"Very thin?" 

"Yes." 

4 'Narrow-chested ; pigeon-breasted ?' 

"They say so; but I didn't think he was by meas- 
urment." 

"Don't talk of measurment. Was he not narrow 
in the front part of the chest ?' ' 

"He appeared so." 

"Did you think the defendant narrow and pigeon- 
breasted?" 

"No; he was stouter." 

"And broader?" 

"Yes." 

"Taller?" 



MR. HAWKINS* CROSS-EXAMINATION. 251 

"No ; about the same height." 

"Had Roger a long neck?" 

"Well, I don't know if longer than usual. As he 
was thin it appeared to be so." 

"The defendant's did not appear so? did it?" 

"It appeared stouter because he was stout." 

"As to the face?" 

"The upper part was like Roger's." 

"What do you say to the lower part?" 

"Well, his nose was injured." 

"But the lower part the chin?" 

"It was shorter." 

"Roger's was long?" 

"Rather." 

"And pointed?" 

" Yes, I think so." 

Now a direct point-blank contradiction of what the 
defendant had sworn in the former trial is obtained 
in this way: 

"Do you know whether he had heard you were in 
Sydney?" 

"lie had seen Guilfoyle (the old family gardener). 
I don't know whether Guilfoyle had told him any- 
thing. (The dowager's letters to the defendant had 
mentioned that Bogle was in Sidney, and was quite 
black). 

"Did he tell you he knew you were in Sydney?" 

"Yes he did." 

"Did he show you a letter of the Lady Tichborne ?' ' 

"He did." 

"Did be ask you if you knew her handwriting?" 



252 ILLUSTRATIONS IN ADVOCACY. 

"Yes, he did." 

"Did he put the letter in your hand?" 

"Yes, he did." 

"Did you read it." 

" I couldn't, as I had not got my glasses." 

"Did he ask you if you knew the handwriting?" 

"Yes, he did; and he told me his mother had 
written and told him I was there." 

"Did he say he had been making enquiries about 
you?" 

"He said he was going to advertise for me." 

The course thus clear, the cross-examination of 
the defendant is now referred to, and that portion 
of it read where the defendant swore that the name 
of Bogle never had been mentioned to him until he 
saw him. 

"But you knew at the time that Bogle was 
there?" 

"I did not t " swore the defendant in his previous 
examination. 

"Had not you received your mother's letter?" 

"No, not at that time." 

We have then up to this point, upon the facts, 
Bogle's absolute contradiction of himself with refer- 
ence to his recognition of the Claimant, and his 
direct contradiction of the Claimant with regard to 
Lady Tichborne's letter, which had informed him 
that Bogle was in Sydney. 

I will now give another example from the cross- 
examination of this witness. It refers to the import- 
ant subject of the tattoo marks which were proved to 



MR. HAWKINS' CROSS-EXAMINATION. 253 

have been upon Roger's arms before he left England. 
As the defendant had no such marks, Bogle swore 
that if Roger had ever had such a thing he, Bogle, 
must have seen then, for Bogle had been with Roger 
on three occasions, and had seen Roger's arms bare, 
and no tattoo mark was there. Positive point-blank 
swearing this, dealt with in the following manner: 

"You say," asks Mr. Hawkins, that "on each of 
these occasions Roger had on a pair of black trousers, 
with his braces tied round his waist?" 

"Yes." 

"Was the night shirt buttoned up to the throat?" 

"Yes." 

"The sleeves, how were they?" 

"Loose." 

"Well?" 

-'Well," says Bogle. 

"What then? What did you see ?" 

"I saw him rub his arm." 

"Simply rubbing his arm, like this?" 

"He just rubbed one arm and then the other." 

"Both at the same time?" 

"No, not both at the same time ; first one and then 
the other.'* 

"Do you know why he rubbed his arm ?" 

"I suppose it itched I I don't know." 

"But what did you think when you saw him rub- 
bing his arm?" 

"I thought he'd got a flea," says the innocent 
Bogle, little dreaming how big a flea that was. 



254 ILLUSTRATIONS IN ADVOCACY. 

"A flea!" says Mr. Hawkins, amid immense 
laughter. 

"Yes, I thought so." 

"Did you see it?" 

"No, of course not, Mr. Hawkins." 

Where abouts was it? Just show me?" 

Bogle points out the place, just about two inches 
above the elbow. 

"Can you tell me what time this was? 3 ' 

"About ten minutes past eleven," says Bogle. 

"That's the first occasion." 

"Yes; but it occurred three times, I've told you." 

"And on each occasion you had the same oppor- 
tunity of seeing his naked arms?" 

Just the same." 

Now let's come to the second occasion. Did he 
do the same thing?" 

"He did the same thing." 

"Was this about the same time?" 

"About the same time." 

"About ten minutes past eleven?" 

"Yes; because I left him about 

"I don't want to know your reasons. Did he just 
rub one arm so, and then the other so?" 

"Yes; he was rubbing his naked arm." 

"And each time you had the opportunity of see- 
ing it?" 

"Each time I saw it." 

"Rubbed it outside?" 

"I don't know what you mean by outside." 

"Did he always put his hand inside?" 



MR. HAWKINS* CROSS-EXAMINATION. 255 

"Inside of a shirt," says the confused Bogle; 
"Always put his hand in I don't know." 

"But I want you to know you recollect it you 
say?" 

"If your shirt was unbuttoned, and you was rub- 
bin' your arm, Mr. Hawkins, you would draw your 
sleeve up." 

"Never mind what I should do," says the cross- 
examiner, "I want to know what you say Roger 
did. Why do you think he rubbed his arm this 
time?" 

"I suppose the same as before.' 

"A flea?" 

"I suppose so." 

"But did you- see him, Bogle?" 

''I told you, Mr. Hawkins, I did not." 

"Excuse me, that was the first one." 

"Well, this was the same." 

They had to wait some time, because the laughter 
was perfectly irresistible, and no amount of usher 
power could restrain it. And upon so important a 
point this laughter was as good as many witnesses 
against the theory of their being no tattoo marks, 
and Bogle's evidence of their non-existence. At 
length Mr. Hawkins continues: 

"You say there were no buttons on the sleeves. 
Bogle?" 

"I don't believe there was, Mr. Hawkins." 

That is a good fair start for witness and counsel. 
It begins like a nice friendly conversation, as calmly 
as possible. 



256 ILLUSTRATIONS IN ADVOCACY. 

"Do you know," asks the counsel, "whether there 
were buttons or not?" 

4 'I don't believe it." 

"But do you know?" 

"I do not know." 

"But I daresay you know this that if a man has 
no shirt-buttons his sleeves would fall open a good 
deal?" 

"I know every man has shirt-buttons, but they 
come off." 

"Were the sleeves made to button?" 

"Yes, of course." 

"And on every one of the three occasions it hap- 
pened to be unbuttoned?" 

"Each time I saw it." 

"Now let us come to the third occasion. Do you 
recollect that?" 

"I do." 

"Do you recollect which arm you saw?" 

"I saw both." 

"Both arms up to the elbow?" 

"Occasionally." 

"Just point out where" it was you saw him 
rubbing." 

Bogle points out the spot. 

"That's the same place as before?" 

"The same place." 

The same place on all three occasions?" 

"Yes." 

"With sleeves unbuttoned?" 

"Yes." 



MIt. HAWKINS* CROSS-EXAMINATION. 257 

"Why did you notice them particularly?" 

"If you pull up your sleeves," says Bogle, "lean 
see it without noticing it particularly," 

"But you would not notice my arm?" 

"If I was sitting with you, and there was two 
sleeves, and if you rubbed your arms, would I not 
see you?" 

"You would look at my arm and notice it particu- 
larly, so as to recollect the circumstance for five- 
and-twenty years, would you?" 

"I would be noticing what you was doing." 

"Do you seriously mean to say you took notice of 
his arms?" 

"I seriously mean to say I saw him rubbing his 
arms, and saw no marks on them." 

"When did you first recall these circumstances to 
memory?" 

"What circumstances?" 

"These summer evening rubbings of his arms in 
1851." 

"I don't know.*' 

'When did you first of all remember it?" 

"I thought of it when I first heard the tattoo marks 
mentioned." 

"Yes?" 

"And I said if he was tattooed I ought to have 
seen it." 

"On the last occasion, did you think it was the 
tlea again?" 

"I suppose so.'* 

"What time was it? About the same time?" 



258 ILLUSTRATIONS IN ADVOCACY. 

"Yes." 

"Ten minutes past eleven?" 

"Yes." 

"Then all I can say is, he must have been a very 
punctual old flea." 

Which observation is enough for Bogle and his 
evidence. It explodes amid a peal of laughter. 



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